December 15, 2022
The sun had yet to come up on Sunday, September 4 when the RCMP station in Melfort, Saskatchewan received the first of what would be numerous 911 calls about stabbings on the James Smith Cree Nation reserve. By daybreak police had already issued a dangerous persons alert and warned the public to seek shelter. At 7:58 am they named two suspects: Myles Sanderson, 32, and his younger brother Damien, 31. Soon all of Canada would be grief-struck.
Before the day ended, police found 10 dead and 18 wounded people on the reserve and in the nearby community of Weldon – all victims of a brutal series of knife attacks by Myles Sanderson. Many of those he killed were among the extended family of his partner Vanessa Burns; he also killed his brother Damien a day later. On Wednesday, one more fatality was added to the toll. After a high-speed police chase, Myles was caught and, according to the RCMP, subsequently went into “medical distress.” He was later pronounced dead, possibly due to a self-administered overdose of fentanyl. His rampage stands as one of Canada’s worst mass killings, and certainly the worst ever to take place on a native reserve. In her last public statement before her death, Queen Elizabeth II said “I mourn with all Canadians at this tragic time.”
Every mass murder is both uniquely horrifying and equally puzzling. Despite many grim differences, they all prompt the same difficult questions. How did it happen? Why here? Could it have been prevented? Will such a thing happen again? The horror at James Smith Cree Nation was no different. “We’re all looking for those same answers,” resident Mark Arcand told Associated Press. “We don’t know what happened. Maybe we’ll never know. That’s the hardest part.” Arcand’s half-sister Bonnie and her son Gregory were both killed in the murder spree.
As residents in this close-knit community of 1,900 expressed disbelief and uncertainty about the tragedy, others much farther way claimed to know with greater precision what the massacre was really about, and what caused it. Outspoken Indigenous activist and Globe and Mail columnist Tanya Talaga dismissed those who addressed Sanderson’s addictions and violent behaviour and instead pointed the finger at everyone else. It was “the social fallout of residential schools and racist policies such as the Indian Act” that explained the tragedy, she wrote. “It is time for Canada to take responsibility” for the problems faced by aboriginal communities, particularly breaking up native families via the prison system, Talaga added. In other words, we’re all to blame.
“Any notion of individual responsibility on Sanderson’s part was waved away in favour of systemic arguments casting blame on the rest of society.”
This unwillingness to ascribe personal responsibility was echoed by Chief Wilton Littlechild, a former Conservative MP and commissioner with the Truth and Reconciliation Commission. In an interview with the CBC Littlechild said, “If you look at what’s behind each individual’s life choices…I’m sure you can trace it back to residential school history. If their parents didn’t go…there’s still that intergenerational trauma after for those that didn’t go.”
Winnipeg Free Press columnist and University of Manitoba professor Niigaan Sinclair went even further, arguing that native trauma (a word he used ten times in his short op-ed) caused by the rest of the country was the true cause of the murders. “All [Indigenous people] are residential school survivors in one shape or another, whether it be experiencing that nightmarish system first hand or intergenerationally…Too many times, this turns to violence,” Sinclair wrote. “What was perpetrated last week was a product of Canada’s history of mistreatment of Indigenous peoples. A genocide returned home.” As for a solution, Sinclair said it “will not be found in more police, jails or blaming First Nations.”
All three elite Indigenous voices sought to indict Canada’s allegedly racist, colonial and genocidal past – and especially the Indian Residential School system – as the true guilty party in the James Smith Cree Nation killings. Any notion of individual responsibility on Sanderson’s part was waved away in favour of systemic arguments casting blame on the rest of society. This is not a new line of thinking. The notion that Indigenous Canadians should be treated differently – in general, more leniently – than offenders of other races for historical reasons has become firmly embedded in Canada’s justice system. In effect, they are considered victims as much as lawbreakers. And the overrepresentation of Indigenous people in Canada’s prisons is seen as conclusive evidence that much more must be done in this regard.
Yet after nearly three decades of such leniency and victimhood, the situation is not improving. Judging by the blood on the ground at the James Smith Cree Nation in September, it is getting worse. And it is law-abiding Indigenous Canadians who are paying the ultimate price.
The Gladue Era
Parliament in 1996 amended the Criminal Code by inserting clause 718.2(e), which requires courts sentencing convicted criminals to consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community with particular attention to the circumstances of Aboriginal offenders.” (Emphasis added.) This measure’s specific goal was to reduce the number of Indigenous people in Canada’s prison system. At the time, aboriginal Canadians comprised approximately 2.7 percent of Canada’s overall population, but 15 percent of its prisoners.
Clause 718.2(e) came to play a central role in Canada’s justice system following the Supreme Court of Canada’s 1999 Gladue decision. The case is noteworthy for how it upends conventional stereotypes of gender-based violence as well as its profound influence on Canadian jurisprudence. Jamie Gladue was an Indigenous woman who suspected her common-law husband Reuven Beaver of having an affair with her sister. The situation came to a head during Gladue’s 19th birthday party in September 1995. After Beaver and her sister snuck away, Gladue exclaimed, “He’s going to get it. He’s really going to get it this time.” As the trial judge later noted, Gladue “was not afraid of [Beaver]; indeed, she was the aggressor.” When Beaver re-appeared a little while later, the five-months-pregnant Gladue grabbed a knife and chased him out of their apartment and down the hallway. Confronting him near her sister’s doorway, she then stabbed him in the heart. A neighbour afterwards heard her exclaim, “I got you, you f*****g bastard.”
“While the Gladue decision stated that the extra consideration for aboriginals should not automatically create leniency in sentencing, there seems little doubt such has become the de facto situation.”
After pleading guilty to manslaughter, Gladue was handed a three-year sentence. She appealed, claiming the trial judge did not sufficiently consider her aboriginal background, as required by clause 718.2(e). In its decision, the Supreme Court chose not to reduce Gladue’s sentence, noting her crime was a “particularly serious one.” (In fact, Gladue served a mere six months in prison and was out on parole a year before the Supreme Court even heard her case.) The court did, however, find the trial judge erred in not taking sufficient note of her status as an Indigenous offender living off-reserve.
As a result of this ruling, trial judges are now directed to request a pre-sentencing report that considers “the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.” This is known as a “Gladue report.” Factors commonly included are a history of cultural oppression, poverty, abuse and addiction as well as residential school attendance, either by the offender or their ancestors.
While the Gladue decision stated that the extra consideration for aboriginals should not automatically create leniency in sentencing, there seems little doubt such has become the de facto situation. Gladue reports have become a key component of the restorative justice movement, which focuses on “healing, reparation and reintegration” rather than overt punishment. Indigenous offenders now have a variety of preferential measures offered to them, including serving time in healing lodges rather than prison and what is called a “Section 84 community release.” These accommodations are unavailable to non-native offenders. And this preference for race-based sentencing procedures is expanding to other ethnicities. Nova Scotia judges can now request “cultural assessments” prior to sentencing black offenders that are strikingly similar to Gladue reports, a practice that could eventually expand across the country.
As if to affirm the federal government’s commitment to the Gladue process, just days before the murders in Saskatchewan, Prime Minister Justin Trudeau appointed Michelle O’Bonsawin to the Supreme Court. Clearly a fan of clause 718.2(e), O’Bonsawin wrote her PhD thesis on the subject. And while her paper, A Principled Approach: The Mandatory Application of the Gladue Principles at Review Board Hearings, cannot be publicly accessed since it is under embargo by the University of Ottawa, in 2020 O’Bonsawin offered her unembargoed opinions to readers of The Lawyer’s Daily:
“Gladue reports are an important part of access to justice for Indigenous persons. They provide for a more meaningful participation of the Indigenous accused in the sentencing process and as such, provide them with both procedurally and substantively a more significant opportunity to impact the sentence imposed. This should then have a positive impact on the issue of overincarceration of Indigenous persons…The over incarceration of Indigenous persons is likely a product of the legacy of colonialism and systemic racism.” (Emphasis added.)
Despite nearly 30 years of effort, however, the Gladue era must surely be regarded as a failure. According to federal data, the share of Indigenous prisoners per 100,000 population dropped by a mere 2.2 percent between 2006 and 2016. Over this same period, however, the share of non-Indigenous inmates fell by 11.6 percent; as a result, the incarceration rate for Indigenous people was still eight times higher than for the rest of the population. In his most recent report, Correctional Investigator of Canada Ivan Zinger reveals that Indigenous inmates account for a staggering 32 percent of total prisoners in custody – double the percentage when clause 718.2(e) was added in 1996. (Considered as a share of Canada’s overall population, Indigenous inmates account for roughly the same proportion as they did in 1996.)
Despite more than a quarter-century of policies explicitly meant to keep Indigenous people out of jail, nothing has improved. Says Zinger, “Overrepresentation of Indigenous people in correctional settings remains one of Canada’s most pressing human rights issues, and is evidence of public policy failures over successive decades as no government has been able to stop or reverse this trend.” Curiously, no one seems prepared to consider that the source of this ongoing problem might be found in the policies of the Gladue era itself.
The Distribution of Crime
Claims by O’Bonsawin and other Indigenous activists that Canada’s history of colonialism and systemic racism are to blame for overincarceration imply that criminal behaviour should be equally distributed across the full range of demographic categories. If such is the case, then any deviation from pure sameness of incarceration rates must be evidence of discrimination or racism. Anyone who has followed the rise of critical race theory will spot the embedded logical flaw. Not everyone is equally likely to commit a crime, especially a violent one.
There is very little Canadian data connecting race to criminal behaviour in a statistically valid way. But analogous evidence from the United States offers an interesting perspective on claims of criminality and overincarceration. Since 1973, the U.S. Department of Justice (DOJ) has released an annual survey of the victims of violent crime. This data set includes questions posed to the victims themselves about the race of their assailants. As such, it offers a “street-level” check on the demographics of serious criminal behaviour.
The most recent 2021 data reveals that violent criminality is definitely not evenly distributed across gender, race or other demographic characteristics. Men, for example, comprise 49 percent of the U.S. population but make up 77 percent of identified offenders in the DOJ survey. With respect to race, whites make up 61 percent of the population and only 52 percent of offenders. Asians make up 7 percent of the American population but a mere 1 percent of violent offenders. Blacks, whose political advocates frequently claim are victimized by the criminal justice system, make up 12 percent of the population but 29 percent of offenders. If a particular group is committing more crimes, it makes sense that they will also comprise a greater percentage of the criminal justice system, including in prison. (Blacks make up 38 percent of U.S. federal prison inmates, so there is some evidence of overincarceration even as they commit a greater proportion of crimes.)
This American data should not be taken as evidence that some races are more prone to criminal behaviour than others; criminality arises from a host of individual, demographic and social factors. But it stands to reason that if members of an identifiable group are committing more crimes, for whatever reason, that group will be “over-represented” in the criminal justice system as well.
A recent Statistics Canada study on Indigenous victimization reveals that native children are far more likely than other Canadian children to have experienced violence at the hands of an adult, to have been sexually assaulted or to have had their basic needs unmet. Twice as many native Canadians as non-natives say they were unloved or unwanted by their parents. One-third of all Indigenous respondents report they’ve witnessed a parent act violently towards another adult. Indigenous adults are also more than twice as likely to be the victims of intimate partner violence as non-Indigenous Canadians. Further, a mountain of evidence illustrates how childhood adversity or maltreatment can lead to criminal or antisocial behaviour in adulthood. All Canadians have an interest in breaking this terrible cycle. But treating violent adult native offenders more leniently than others is not likely to be an effective solution.
Regarding O’Bonsawin’s allegations of a link between colonialism and criminality, international evidence suggests not. A 2019 report by the United Nations Office on Drugs and Crime compares Singapore, which has the world’s lowest rate of intentional homicide, with Jamaica, which has the second-highest. Both had long histories as British colonies. Clearly colonialism cannot explain the difference in outcomes. What can? “The decline in crime rates in Singapore should be interpreted in the wider context of improvements in education, health care, life expectancy and wealth,” the UN report states. “In Jamaica, the steady increase in homicide can be traced to the rise of gun and gang violence and feuds between rival political factions.” In other words, divergent policy choices made by the two countries explain their wildly differing murder rates, not their shared backstory.
What holds true for countries applies to individuals as well. After the killings in James Smith Cree Nation, resident Warren Burns, a relative of Vanessa Burns, discussed Myles Sanderson’s upbringing with the Saskatoon Star-Phoenix. “He grew up in the same environment that most of us did,” Burns said. “But the choices he eventually made were different.” A close look into Sanderson’s short and violent life points to the fatal consequences of the restorative justice movement’s preference for collective victimization over an emphasis on personal choices and individual responsibility.
“You Have Made Little Positive Progress”
According to his Parole Board of Canada documents, Sanderson “grew up in an urban centre in an environment involving physical abuse, domestic violence and instability.” When he was nine his parents separated and he lived variously with his grandparents and at his parents’ houses. As the StatsCan data referenced above suggests, many Indigenous children face similarly tumultuous circumstances in their home. But Sanderson responded differently than most to such experiences. By his 20s he was a drug dealer and violent criminal.
Prior to his killing spree, Sanderson had been charged with 125 crimes. Among these charges were two attempted murders and 18 assaults. Many of the assault charges (including in 2011, 2012 and 2013) were for domestic violence against Vanessa Burns, the mother of four of his six children. He also targeted her immediate family for abuse. In 2015 he stabbed Vanessa’s parents Earl and Joyce Burns and was sentenced to two years in provincial custody. In 2017 he entered Vanessa’s house in a violent rage and punched a hole in the bathroom door while two of his own children hid in the bathtub. A few days later he got into a fight at a store on the reserve and threatened to kill the employee. That same year he savagely beat an accomplice to force him into helping rob a Subway restaurant in Melton; they got away with $150. In 2018 he stabbed two men with a fork and savagely beat another man, leaving him unconscious in a ditch. The list of violent acts goes on and on.
“The 10-page report lays bare Sanderson’s constant record of violence towards his spouse and others, as well as his habitual disregard for any restrictions placed on him by the parole system. It offers ample and well-grounded reasons for his continued detention.”
At the time of his death, Myles was serving a four-year, four-month, 19-day federal sentence for his many acts of violence throughout 2018. In August 2021, however, he received “statutory release” from prison. That is, he had served two-thirds of his sentence and was automatically eligible to serve the rest of his time in the community, under certain conditions. One of those conditions was that he not contact Vanessa Burns. Once released, however, he promptly moved back in with her in Saskatoon. Burns was complicit in this lie, but when Sanderson began to beat her again, she reported him to his parole officer. After this deception was discovered, Sanderson was reincarcerated in November 2021 – what was called a “suspension” of his automatic statutory release. Early this year, he again came before the Parole Board requesting release.
The board’s decision, dated February 1, 2022 and signed by Parole Board member Betty Ann Pottruff, is replete with warning signs about Sanderson’s apparently uncontrollable tendency for violence. A Violence Risk Appraisal Guide placed him in the “high risk” category and assessed a 55 percent probability that he would return to violent crime within seven years of being released. He was also considered a “high risk” under a separate Spousal Assault Risk Assessment. His parole supervisor further testified that the risk of letting Sanderson out of prison “was no longer manageable in the community.” After reviewing Sanderson’s lengthy rap sheet and many failed efforts at rehabilitation, Pottruff told him bluntly, “You have made little positive progress during your current release and the circumstances leading to your suspension were entirely within your control.”
Pottruff’s 10-page report lays bare Sanderson’s constant record of violence towards his spouse and others, as well as his habitual disregard for any restrictions placed on him by the parole system. It offers ample and well-grounded reasons for his continued detention. And it makes clear that everything he had done or not done (including his failure to hold a job) was within the realm of his own conscious choices. The only contrary evidence lay in Sanderson’s background report, with all the exculpatory information familiar to Gladue reports. As Pottruff wrote:
“Considering your Indigenous background, the Board notes that there are factors from your background that may have contributed to your involvement in the criminal justice system including intergenerational impacts of residential schools, neglect, exposure to familial and community substance abuse, your own substance abuse issues, exposure to/experiencing domestic violence during your childhood, family fragmentation, lack of education, and the loss of culture/spirituality.”
After listening to Sanderson’s claims of recommitting to sobriety and reconnecting with his Indigenous culture through a healing lodge program – and in spite of the mountain of countervailing information regarding his record, personal temperament and habits – Pottruff concluded, “It is the Board’s opinion that you will not present an undue risk to society if released on statutory release and that your release will contribute to the protection of society by facilitating reintegration into society as a law-abiding citizen.” (Emphasis added.)
While the final results of the RCMP’s criminal investigation of the horrific massacre have not yet been released, we do have a basic understanding of what Sanderson did after he got out of federal prison a second time. As Vanessa Burns explained in a lengthy interview with Global News, Sanderson quickly returned to his familiar destructive patterns.
Despite the Parole Board’s directive that he was to have “no contact with V.B.,” Sanderson went back to living with her. And he quickly returned to his pattern of domestic abuse. Within a few months Burns had once again reported on his parole breach and he was then listed as “unlawfully at large.” The tempestuous relationship of Sanderson and Burns remains one of the greatest puzzles of the entire affair. As she explained to Global News, after breaking off their relationship, she still agreed to drive Sanderson the 200 km from Saskatoon to the James Smith Cree Nation on several occasions so he and his brother could sell cocaine to residents. Her last trip was on September 2; it ended when Myles tried to choke her in her own car. Only after Damien intervened was she able to escape and return to Saskatoon. Myles and Damien stayed on the reserve over the weekend. Two days later, the killings began, resulting in 11 deaths, including Damien and Vanessa’s father Earl; her mother Joyce was hospitalized with numerous stab wounds.
Given the ultimate result, the February decision by Pottruff can be considered compelling evidence of the failings of the Gladue era. Clearly Sanderson did present a grave risk to society. Most significantly, to anyone living in James Smith Cree Nation.
Who Pays the Price?
The Canadian Criminal Code recognizes several key principles in sentencing. The first two: to denounce and deter. That is, offenders are punished in order to send a message to the rest of society that illegal behaviour is wrong and that it entails unpleasant penalties. Further, incarcerating offenders – especially repeat offenders – is a means of protecting other members of society by isolating dangerous criminals from everyone else. But the denunciation and deterrence effects are clearly weakened if the courts hand out lighter sentences on account of the race of offenders, or their alleged history. And allowing criminals to leave prison early in an effort to arbitrarily correct prison population statistics undermines the crucial protection factor. Myles Sanderson offers ample evidence of failure on all counts. His behaviour was neither denounced nor deterred, and the rest of society was not protected.
The details of Sanderson’s murder spree reveal how simplistic it is to blame institutional or historical causes for individual crimes. He never attended a residential school and was not directly affected by any colonial-era policies. Rather, he grew up at a time when the assimilation of Indigenous people into mainstream Canadian society had been explicitly rejected and the justice system was doing all it could to keep Indigenous offenders out of prison. He was the repeated beneficiary of numerous restorative justice innovations meant to address the alleged “overincarceration” problem, including Gladue reports and healing lodges. Despite ample evidence of his incorrigible criminal behaviour and penchant for violence, however, the personal aspects of Sanderson’s case file were outpointed by systemic factors such as the “intergenerational impacts of residential schools.”
Now, even after having witnessed the bloody results of Sanderson’s release, many native activists are still claiming “native trauma” is the root cause of the tragedy. As University of Calgary professor emeritus of political science Tom Flanagan pointed out in a recent study for Dorchester Review, there is no methodologically-sound basis for making any claims about the intergenerational effects of residential school attendance. Beyond this troubling lack of evidence, such a sweeping assertion also robs Indigenous people of basic human agency, since it assumes they lack the ability to determine their own fate on their own terms – even the basic self-control to refrain from killing their own relatives. Mass murderers remain – thankfully – a minute component of both the Indigenous population and the rest of Canadian society. But however often journalists and activists may claim otherwise, such monsters are not simply created out of social conditions.
“If Sanderson had been required to serve the full length of his sentence – if his parole board hearing had accepted the plain evidence before it rather than relying on sloppy reasoning about systemic factors – he wouldn’t have been able to commit these horrific crimes.”
Why people impulsively commit murder is poorly understood by scientists, but it is likely related to a neurological inability to control feelings of anger as they interact with those around them, especially under the influence of alcohol or drugs. For mass murderers, the trigger may arise from years of personal disappointment and failure that results in a combination of profound hopelessness and deep-seated resentment. According to James Alan Fox, the Lipman Family Professor of Criminology, Law, and Public Policy at Northeastern University:
“Socially or psychologically isolated, mass murderers lack emotional support and encouragement from confidants. Moreover, they have no one around to help provide a much-needed reality check on their warped perception of constantly being the victim of injustice. Tending to externalize blame, they seek to punish those whom they hold responsible for their miserable life.”
If we accept Fox’s expert opinion that mass murderers lash out at those they blame, it seems significant that Sanderson did not attack the Canadian government, the RCMP, the Catholic Church or any other institutions or individuals representing Canada’s allegedly long history of colonialism and systemic racism. Rather, he brutally attacked his own community, including many members of his family and that of his common-law partner Vanessa Burns. His rampage was highly personal. Had Burns stayed with her parents on that fateful weekend, she would almost certainly have become his 12th victim – and perhaps their children as well would have been added to the awful toll. All of which serves as a sad reminder that a preponderance of the violence suffered by Indigenous people in Canada, particularly by women, comes by the hand of other Indigenous people. A criminal justice system that is deliberately lenient towards native offenders thus puts native communities at greater risk. It seems a grim irony.
Setting Sanderson free from prison despite all the convincing evidence regarding his individual tendencies towards violence and his habitual disregard for the law was part of a decades-long campaign by the federal government to address Indigenous conditions. Such policies are clearly not improving the condition for Indigenous people. In fact, they are increasing the quantum of Indigenous suffering. If Sanderson had been required to serve the full length of his sentence – if his parole board hearing had accepted the plain evidence before it rather than relying on sloppy reasoning about systemic factors – he wouldn’t have been able to commit these horrific crimes. He would’ve still been in prison. Eleven murders could have been averted.
What caused the killings at James Smith Cree Nation wasn’t centuries-old trauma. It was a criminal justice system that puts Indigenous communities at risk by failing to sentence violent criminals appropriately and then releasing them too soon.
Hymie Rubenstein is editor of The REAL Indigenous Issues Newsletter and a retired professor of anthropology at the University of Manitoba.