November and December 1994: The Sweat Lodge Incident -- An Issue of Discipline or Reconciliation?
Journeying to Kent on rain-driven days in November often involves penetrating the heavy mists that surround the prison, evoking a contemporary Canadian reflection of Dartmoor, the brooding prison on the British Moors which for generations symbolized, in both geography and architecture, the penitentiary as the place of punishment for the outcasts of society. In my visits to Kent in November 1994 I encountered not only the forces of nature, but also the forces of maximum-security which fog the lines of communication between prisoners, staff and administration. On Saturday, November 5, six general population prisoners were charged with disobeying a justifiable order following an incident in the sweat lodge. This incident raised many of the same issues which were joined in 1983 when the Native Brotherhood first challenged the correctional authorities and insisted upon their right to practice their spirituality. The sweat lodge incident in November 1994 also provided a window into the limitations of resolving prison conflicts within a retributive framework and the benefits of achieving reconciliation through restorative justice.
Six prisoners faced charges of disobeying a justifiable order in the sweat lodge incident. They were Mr. Johnson, the President of the general population Native Brotherhood; Mr. OíMeara, the Secretary/Treasurer of the Brotherhood; Mr. Shanoss; Mr. Belluz; Mr. Gallant; and Mr. Gomez-Rosalez. The offence reports were written up in identical form. Mr. Johnsonís report alleged that: "At 1057 hours inmate Johnson was given a direct order to clear the GP sweat lodge. He refused to do so."
A number of observation reports were filed together with the charges. The report written by Officer Ferron set out the chronology:
At approximately 1045 hours this writer and CO-I Sutherland went to clear out the GP yard and sweat lodge. At this time the yard was cleared but six inmates in sweat lodge refused to clear the sweat lodge. Inmates were OíMeara, Johnson, Shanoss, Rosalez-Gomez, Gallant, Belluz. Spokespersons at this time appeared to be Johnson and OíMeara. They refused to clear sweat lodge because of the spirituality of the sweat fire which could not be left unattended. At this time I informed Correctional Supervisor Wilkinson. At 1057 myself and acting supervisor Wilkinson went to the sweat lodge and informed inmates to clear the sweat lodge. Inmates refused stating spirituality reasons. At this time acting supervisor Wilkinson gave a direct order to the inmates but was refused. Inmates Gallant and Johnson stated, we had more time the week before, and stated that they will return to units at 1245 hours. At 1105 hours myself and acting supervisor Wilkinson informed Unit Manager Rick Cawsey of the situation."
The first appearance for these charges took place on November 15. Mr. Johnson, the President of the Brotherhood, attended with the Native Elder, Roland Leon. Mr. Johnson said that he was prepared to go ahead with his hearing. Mr Wallin, the institutional advisor, agreed to proceed because Officer Wilkinson was on duty. Mr Wallin suggested that rather than have Officer Wilkinson give his evidence six times on separate occasions, it might be more expeditious if all of the prisoners could agree to have their hearing at the same time and the evidence be given once. Mr. Johnson said that he was in agreement with this and the other prisoners were called to the hearing.
Officer Wilkinson testified that he proceeded to the sweat lodge area after being informed that prisoners were refusing to clear the area. This was about 11:00. He advised them that they would have to leave. They said that they could not do that. Because there seemed to be some uncertainty as to the situation, and because he was in an acting capacity, he went to clarify what the procedures were. He did this because the count was not until 12:00 and taking this extra step would not delay the count. At 11:30 he returned to the sweat lodge and again asked the prisoners to leave, referring them to a memorandum which stated that when they were in the sweat lodge with an Elder they could remain there through the count, but in the absence of an Elder they were required to return to their units for the count. Officer Wilkinson told the prisoners to clear the area and told them, "Consider that an order." The only prisoners who responded were Johnson and Gallant and the other prisoners were just milling around and made no verbal response. Officer Wilkinson said that he then went to talk to Unit Manager Cawsey and returned to the area with Mr. Cawsey. At that time Mr. Cawsey repeated the order and the prisoners eventually left the sweat lodge. The result of all this was that the count was delayed by half an hour and therefore the other prisoners lost half an hourís recreation. Officer Wilkinson was asked by Mr. Fox what was the prisonersí response at 11:30 when he returned for the second time and told them to leave. Officer Wilkinson replied that Mr. Johnson said that they were not finished the sweat lodge and they were not prepared to leave until they were finished.
At the end of Officer Wilkinsonís evidence Mr. Johnson was invited to ask his questions or to indicate where he took issue with what the officer had said. Mr. Johnson said that when Officer Wilkinson first came out to the sweat lodge at around 11:00, he told the prisoners that it made no difference to him one way or the other whether they remained out there; he was just doing his job. He took the names of the prisoners in the sweat lodge and Mr. Johnson said that he thought Officer Wilkinson was doing this in order to complete the count. So far as he was concerned, no order was given to leave the sweat lodge until Mr. Cawsey came back after 12:00 and at that point the prisoners did leave. In response to further questioning from Mr. Fox, he said that he never heard Officer Wilkinson state, "Consider that an order."
Several of the prisoners began to explain that on previous occasions they had been allowed to stay out in the sweat lodge area, without an Elder, beyond 12:00 and through the count. Mr. Belluz asked Officer Wilkinson how far he was from the prisoners when he told them to leave. Officer Wilkinson said that he was about 10 feet away from them on the other side of the fence. Mr. Belluz asked him if he remembered where he was positioned. Officer Wilkinson said that he was milling around along with the other prisoners. Mr. Belluz suggested that he was sitting in a chair at the far fence, which would be something like 40 feet away from where Officer Wilkinson was standing. The reason why he was sitting there was because the prisoners had discovered an injured duck when they went out to the sweat lodge and Mr. Belluz, who was participating in his first sweat ceremony at Kent, was instructed by the other prisoners to care for the duck. When Officer Wilkinson first came, and also on his second visit, Mr. Belluz was looking after the duck. Officer Wilkinson said that he was aware that there was a duck in the area.
Mr. Gallant said that the memo to which Officer Wilkinson referred was two years old. The memo, dated July 8, 1992, which was attached to the offence reports, read in relevant part, "Sweat ceremonies with Native Elders in attendance shall be from 8:00 to 13:30 hours on Saturday. In instances where an Elder who was scheduled to perform a sweat ceremony does not arrive, the ceremony shall be rescheduled. In-house sweat ceremonies may take place without an Elder during regular recreation time only. Lock up and count times must be adhered to." Mr. Gallant said that for the last year when the sweats have been held on Saturday, without an Elder present, the prisoners had been allowed to stay out until either 1:00 or 2:00, depending upon the time of protective custody movement. This had been the practice and on a number of occasions recently, when staff had asked the prisoners to go in for the count at 12:00 and prisoners have stated that they were not finished and could not leave the fire unattended, the matter had not been pressed; the prisoners had been allowed to stay out and no charges were laid.
At this point Mr. Fox summarized the prisoners evidence to give Officer Wilkinson an opportunity to respond. Mr. Fox said that what he got from the prisoners was that they did not clearly understand that there was an order being given; this was in part because of the way Officer Wilkinson spoke to them and in part because of past practice in which the memorandum was not rigidly adhered to. Officer Wilkinson replied that he disputed the prisonersí version. He clearly gave them an order and that, prior to his giving the order, they had been told to clear the area over the prison loud speaker.
Mr. Gallant suggested that it might seem that what was involved here was an adversarial situation, in which six inmates were having a confrontation with an officer acting in the course of his duty. That was not what was at stake. The prisoners were trying to conduct a ceremony in an appropriate way and were doing so in accordance with procedures which had been the practice for at least the last year, whatever might be written in the memo of 1992. The fact of the matter was that the memo was not being enforced and the prisoners were of the view that when the officers on this occasion asked them to leave the area, their rights were being violated and there was a lack of respect for Aboriginal spirituality.
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