Judge releases convicted man to attend sweat lodge

In what he called "a very unique, peculiar situation," a judge has released a Batchewana First Nation man on an interim bail so that he can attend burial ceremonies this weekend for his sister.

Michael Bjornaa, who is awaiting sentencing on numerous serious offences, will be able to leave the Algoma Treatment and Remand Centre on Friday and Saturday to participate in ceremonies with his family.

When he granted the bail Thursday, Superior Court Justice Ian McMillan imposed strict conditions, and also indicated this shouldn't be taken as a precedent.

He said the underlying purpose was to accommodate reformation.

"It strikes me from everything that I have heard Mr. Bjornaa is on the road to reformation," he said. "This may well be tremendously helpful to him doing it."

Bjornaa, 33, has lost three family members since he was incarcerated three years ago, awaiting trial in connection with an Oct. 22,  2014 shooting at a Wellington Street East house.

His younger sister Hillary died suddenly in July and his mother has been waiting until he gets out of jail to bury her cremated remains.

"There is a common sense feature to this," McMillan said, noting that Bjornaa is surely mindful of the time he has already spent in custody and that he is the judge who will sentence him for his offences.

Outside the courtroom, defence lawyer Don Orazietti agreed with the judge that release at this stage in court proceedings is highly unusual.

"It also shows how compassionate the system can be," he said in an interview. "It's extremely commendable of his honour."

Assistant Crown attorney Dana Peterson said that since the matter is still before the court she was not in a position to comment.

The judge told Bjornaa that a number of people, not just family, had come to court to share their belief in the sincerity of his professed change.

Amanda Bjornaa was named her brother's surety and was required to post a penalty sum of $5,000 (no deposit).

McMillan said this "is simply security to ensure Michael's behavior and I'm sure he recognizes that and the effect of it."

Bjornaa indicated that he understood the significance of his sister's commitment and that he will follow what is required.

"I understand the consequences of my actions," he assured McMillan, later saying "thank you very much."

Bjornaa will be released from the jail into his sister's custody Friday at 9 a.m. to attend a sweat lodge at Garden River First Nation and must return to the facility by no later than 8 p.m.

He can leave the treatment centre Saturday at 10 a.m. to travel to Batchewana First Nation, north of Sault Ste. Marie, for the burial ceremony, and then to a family feast and sharing circle in the city. He must be back at ATRC by 8 p.m.

Bjornaa must constantly be in Amanda's company and the presence of either one or both lndian Friendship Centre workers, who told the court they would be with him. 

McMillan also imposed a number of other conditions, including no alcohol or controlled drug consumption, and a weapon prohibition.

In June, he found Bjornaa not guilty of attempted murder and using a firearm while committing an indictable offence, charges stemming from the shooting where the victim was shot 12 times.

But McMillan convicted him of aggravated assault, administering a noxious substance (pepper spray), discharge of a firearm with intent and two other offences.

During a hearing that began last week, and continued Wednesday, the court heard from Bjornaa and a number of witnesses.

He testified that his 32-year-old sister's death, following an epileptic seizure, was a shock that has a taken a mental, emotional and physical toll on him.

Bjornaa also said he has spent 21 months learning about his ancestral roots and wants to participate in the burial ceremony and a sweat lodge.

Samantha Boyer, a court worker with the friendship centre, said she first met Bjornaa in January 2016, when he requested a smudging (a purification ceremony using sage) prior to his preliminary hearing.

"He felt he needed that before court."

She said she's talked with him several times at the ATRC and he's shared a lot of his family history with her.

Boyer indicated that she and James Roach, the centre's culture resource co-ordinator, are prepared to escort Bjornaa and would attend the ceremonies with him and his family.

Roach, an Ojibway elder who will conduct the sweat lodge, described it as a gift from the creator for healing purposes.

"It entails physical sacrifice and helps to prepare to talk to the creator."

He told McMillan he has spoken to Bjornaa at the jail and "he seems sincere, he wants to pray with his family."

The Crown called one witness, Ron MacInnis, the treatment centre's acting superintendent, to testify at the bail hearing.

Bjornaa's behaviour has been significantly different from the first two and a half years and "he's not disobeying staff," he told Peterson. 

He said that Bjornaa had a significant number of misconducts in 2014, 2015 and 2016, but only a couple during the past year."

During cross-examination, Orazietti asked MacInnis if there was a legitimate concern for public safety if Bjornaa was given an interim release.

"I believe it's a court decision. If it was up to the institution we wouldn't do it," he replied.

On Wednesday, the defence argued that Bjornaa seems to have reached a watershed moment in his life following the loss of his family members in a cluster of three years.

 Orazietti pointed to the emotional loss his client has suffered, the grieving he has been going through in isolation and in an institution.

"How much more humiliating can that be to lose a father, sister and godfather," he said.

"I would think society would be shocked that we don't have enough humanity, that we have to say no and the only way he can go (to the ceremonies) is in shackles." 

What kind of justice system do we have, after all this man has been through, that our society can't take a chance to let him out, the veteran defence counsel asked.

Orazietti said he was having difficulty in seeing how Bjornaa posed a problem, given the surety he has and the people who have stood up for him.

Peterson said the Crown couldn't consent to his release, given his criminal record, and the risk he presents to re-offend.

Noting this is an after-conviction bail hearing, and Bjornaa is awaiting sentencing for serious offences, she said his record is replete with breaches that resulted in substantive new offences.

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