Jason Luciw - Kelowna Capital News Published: July 10, 2009
Serious criminal offenders are living on borrowed time on the Westbank First Nation’s two Westside and three Kelowna reserves. WFN council secretariat Kirk Dressler is one of three lawyers who has worked with Chief Robert Louie and council to implement the band’s new Community Protection Law, which was adopted last week. Dressler said the law will allow the band to impose restraining orders on repeat drug offenders, sexual predators and people convicted of serious violent crimes, ranging from aggravated assault to murder. Both native and non-native offenders will be subjected to the law on reserve land.
“These types of individuals are identified as a significant threat to the community,” said Dressler. “The restraining order will limit the individual’s right to access areas surrounding community facilities, buildings owned by the Westbank First Nation, churches, schools, day cares, bus stops, parks and other amenities like biking paths.” A 500-metre buffer will be established around the sites, preventing the individuals from accessing virtually all populated areas of the reserves, said Dressler. Offenders will be given a map showing the areas they are precluded from entering, he explained. If the individual owns property on the reserves, however, the Westbank First Nation is incapable of preventing them from accessing their holdings, noted Dressler. Therefore, the band would impose restrictions on how the individual could access and leave the property.
Under the new law, the band has specific criteria it must follow before imposing the restraining order. For example, chief and council must hold a hearing where offenders have the right to legal representation. “If council is satisfied that the restrictions under (the offender’s) probation, some form of treatment or other mechanisms are sufficient to address the threat that these individuals present then no action will be taken,” Dressler said.
Dressler was asked how chief and council could have jurisdiction, limiting an individual’s mobility rights. “Council is asserting its authority over Westbank lands,” he explained.“It has jurisdiction under the (WFN) self government agreement with respect to peace, order and public safety.” Provisions in the band’s law will allow the individual to appeal the order. The offender’s case can also be reviewed annually. The restraint can be temporarily suspended if the offender needs to return to band lands for compassionate reasons.
The law was proposed more than a year ago, following pressure from both members and non-band members living on Westbank First Nation land, who wanted action taken to protect reserve land from serious criminal offences, said Dressler. “This law is without precedent in this province or this country and not just on First Nation lands,” said Dressler. “It is thorny territory and there are constitutional issues and we are well aware of that.” However, the Community Protection Law was created on the basis that a dangerous offender’s mobility rights must be balanced against a greater social purpose. “Council must be reasonably satisfied that the presence of the convicted person poses a significant threat to the health, safety or well being of any person on WFN lands,” Dressler continued, “and, that there is no other way to reasonably reduce the threat.”
The band will work with RCMP to identify cases where orders should be considered. With passage of the law, it will now proceed to an implementation stage, allowing lawyers to refine rules concerning how hearings will be conducted, said Dressler. Following that, the band will properly apprise all residents living on band land of the law’s existence and purpose. Chief Robert Louie was on vacation and unavailable for comment.Kelowna RCMP Supt. Bill McKinnon did not return a call requesting comment before press deadline.
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