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Aboriginal Justice Advisory Council. Circle Sentencing: Involving Aboriginal Communities in the Sentencing Process

Circle sentencing or circle courts arose in Canada in the early 1992 out of a decision from the Supreme Court of the Yukon in the case of R v Moses. In that case the presiding judge, Judge Stuart, advocated a significant change in the Canadian sentencing process. Judge Stuart was of the opinion that a significant and immediate improvement could be achieved within the judicial system by increasing meaningful community involvement in the sentencing process, before during and after the sentencing takes place. In attempting to implement this Judge Stuart consulted the local Indian community and the concept of circle courts was developed. Circle courts were adopted by a number of more traditionally oriented first nations people in Canada, but have subsequently been adopted in Canadian urban settings and are also now used in the United States. (excerpt)

Bargen, J. Critical View of Conferencing

A critique of two new criminal justice initiatives, sentencing circles in Canada and family group conferences in Australia, is presented. Sentencing circles in Canada involve a process whereby community members recommend the sentence in cases involving other members of the same community. Family group conferences in Australia allow persons directly affected by crime to actively participate in dealing with the consequences of crime. Both collective and individual accountability for offending behavior. Both initiatives are evaluated in terms of their implications for aboriginal and indigenous communities.

Baskin, Cyndy. Holistic Healing and Accountability: Indigenous Restorative Justice

Writing from an Aboriginal perspective in Canada, Cyndy Baskin draws certain fundamental contrasts between Western-European and Aboriginal approaches to understanding and dealing with wrongdoing. For example, a Western-European approach, as seen in the dominant society and its criminal justice system in Canada, focuses on the offender and his or her individual responsibility for wrongdoing, and emphasizes punishment of the offender as the most appropriate response. An Aboriginal approach emphasizes a collective responsibility for dealing with wrongdoing and seeks healing to restore peace and balance among the community, offender, and victim. In this framework, Baskin discusses her work with Aboriginal sexual offenders using culture-based restorative justice aims and processes, such as circles.

Buller, Ed. Aboriginal Community Healing Processes In Canada.

Issues of abuse within families and particularly Aboriginal families have been brought to the surface in Canada over the last decade. In response, a growing number of Aboriginal communities are developing holistic models of treatment for Aboriginal victims, offenders, families and the community as a whole. The approach taken is one that addresses the root causes of criminal activity and proactively engages offenders, victims and families to break the cycle of abuse. These initiatives work within the current criminal justice system while bringing a unique alternative to imprisonment that can lead to stronger and safer communities. Communities engaged in these healing approaches have seen benefits in terms of significantly reduced criminal activity and several other social benefits. There is not one universally recognized definition of community healing. Some have described healing as being “about collective approaches to change that enhance Aboriginal cultural identity. It is about family and community crisis intervention, integrated human services, political cooperation and public participation in processes of planned change and institution building.”i The Four Worlds Centre for Development Education concludes that healing “ may therefore be strategically described as a process of removing barriers and building the capacity of people and communities to address the determinants of health.(excerpt)

Dutil, Jean-L.. "Restorative Practices Seen by the Court"

Quebec, Canada, Dutil discusses a number of principles and practices in Aboriginal communities in Quebec – principles and practices blending Aboriginal patterns and Euro-Canadian criminal justice. Using examples from actual incidents of crime, he refers in particular to sentencing circles and their similarity to traditional Aboriginal responses to wrongdoing (those traditional responses being based on Aboriginal values and philosophy).

Eagle, Harley. Restorative Justice in Native Cultures

Harley Eagle is of Dakota and Saulteaux ancestry. He lives on the Pine Ridge Indian Reservation in South Dakota among his Oglala Lakota relatives. From this indigenous perspective, and from his experiences in community work on the reservation, he writes about restorative justice in native cultures. After rehearsing some of the history of conflict between native peoples and Euro-Americans in North America and its harmful effects on native peoples, he states that it is necessary to keep in mind this historical context when practitioners engage in restorative justice work within indigenous communities. When dealing with present conflicts between people and in communities on reservations, the historical context means the conflicts often actually have a long history of family disputes that have never been healed. People involved in the conflict have forgotten traditional values, customs, and practices for dealing with conflict. Restorative approaches tap can into traditional ways, encourage native peoples, and lead to constructive results for individuals, relationships, and communities on the reservations.

Gulati, Shruti Gola. Healing the Circle: Exploring the Conjuncture of Peacemaking Criminology and Native Justice Initiatives

Peacemaking criminology is a non-violent movement against oppression, social injustice and violence as found within criminology, criminal justice and Society in general. Richard Quinney proposes that crime and the criminal justice process are characterized by suffering to victims, offenders and society and that crime and justice problems may be eliminated or reduced by healing the suffering which makes them a possibility. A strategy of compassion and service is therefore advocated to affect suffering and thus crime. Peacemaking criminologists recognize the dialectical relationship between the individual and society, each shaping and being shaped by the other. It is therefore important that individuals achieve a measure of peace within themselves in order to move society in the direction of peace. To this end, peacemaking criminologists advocate spiritual practice, respect for the sacred and love as tools with which one may develop the discrimination to recognize injustice and the desire and ability to end suffering. This thesis discusses the peacemaking potential of Native justice initiatives within the context of Canadian criminal justice. Like peacemaking which rose as a revitalization of peace and non-violence within criminology and its concerns, Native justice initiatives can be viewed as a revitalization movement which has risen in response to the injustice of the criminal process for Native people. By offering alternatives to criminal justice or healing approaches within the structure of the conventional criminal process, Native justice initiatives seek to provide healing and restoration and a meaningful delivery of justice to Native people in conflict with the law. The peacemaking potential of such alternatives lies in the observation that the current euro-based structure of criminal justice is foreign to the traditional spiritual and social understanding of Native people. Author's abstract.

Haarala, Lloyd. A Community Within

A member and elder of the Anishinaabe of N.W. Angle Band #33, Lake of the Woods, Ontario, Lloyd Haarala is also the native spiritual advisor at William Head Institution, a correctional facility in British Columbia. He tells in this article of a recent Spring Fasting opportunity at William Head Institution. A former inmate nearing the end of his Warrant Expiry Date asked and received permission to live in the facility for the week of fasting to help current inmates. Haarala explains how this exemplifies the value held among First Nations’ people of giving back to their communities. This emphasis on community, also found in restorative justice, is as much a matter of the heart as the head, says Haarala. Further, restorative justice as the importance of family and community should be the norm for society in general, not only when crime or wrongdoing occur.

Hanna, Darwin. Revitalizing Aboriginal Control over Justice

A lawyer since the mid 1990s, Darwin Hannah has considerable experience with legal matters in relation to aboriginal communities in Canada. Hanna’s conclusion – supported by the experiences of colleagues and a review of relevant literature – is that aboriginal justice principles are not significantly used within the Canadian justice system to address criminal justice issues relating to aboriginal people and communities. Many studies, reports, commissions, and inquiries have recommended that such principles be used to resolve conflict in aboriginal communities. Yet this has not occurred to any significant degree. In this context, Hanna explores both the use of aboriginal justice beliefs to restore balance in aboriginal communities and the issues and challenges of applying aboriginal justice principles within the current system.

Ives, Dale E. Inequality, Crime and Sentencing: Borde, Hamilton and the Relevance of Social Disadvantage in Canadian Sentencing Law

In R. v. Gladue n1 and R. v. Wells, the Supreme Court: of Canada adopted methodology for sentencing aboriginal offenders in the hope of reducing the overrepresentation of aboriginal peoples in Canada's prisons. Relying on section 718.2(e) of the Criminal Code, the Court held that in deciding on a fit sentence for an aboriginal offender, a judge must address two issues. First, the judge must take into account the unique systemic and background factors that may have contributed to the aboriginal offender being before the court. Second, the judge must consider the type of procedures and sanctions that may be appropriate in the circumstances given the offender's specific heritage or connection to an aboriginal community. (excerpt)

Johal, Simrita. First Nations Self-Administered Police Forces: The Changing Nature of the Administration of Justice

Delivering appropriate police services to Aboriginal communities across Canada is a difficult task. In the late 1980s and throughout the 1990s, a number of proposals and policies were put in place to address Aboriginal peoples' concerns with on-reserve policing procedures. These policies aimed to contribute to the improvement of social order, public security and personal safety in Aboriginal communities. This thesis investigates the evolution and the effectiveness of on-reserve Aboriginal policing options, with a particular focus on four First-Nations self-administered police services. This analysis explores how historical cultural definitions of justice have impacted policing services to on-reserve Aboriginal communities across the country. The goal of the thesis is to explore how the law enforcement component of the justice system is helping Aboriginal peoples to acquire the tools to become self-sufficient and self-governing through the establishment of structures for the management and administration of First Nations police services. Author's abstract.

Laprairie, Carol. Aboriginal Criminal Justice in Canada

A special issue of the journal is devoted to Aboriginal crime and justice, primarily in Canada which use Braithwaite's (1989) "Crime, Shame and Reintegration" as an explanatory framework. Articles include customary law among aboriginal groups in British Columbia; crime control in 3 Ontario Nishnawbe-Aski Nation communities; dominant and dominated cultures of native villages in Alaska; the role of police on 25 reserves in Quebec; homicide trends among Aboriginals and other Canadians; Aboriginal female suicides in custody; the dimensions of "owning" crime and disorder in the east James Bay Cree communities of Quebec; the juvenile court system in 22 Manitoba communities; factors influencing native policing arrangements; critiques the theory of invention of tradition, with the People of the Longhouse of the Kahnawake Mohawk Nation; the issue of community participation in socio-legal control within the Inuit of the Northwest Territories; and the characteristics of Aboriginal recidivist. Lastly, Scott Clark attempts to tie together the underlying themes of this special issue.

Lee, Gloria. "The Newest Old Gem: Family Group Conferencing"

Urging caution, the author states that Family Group Conferencing is the newest trend in justice development and hopes for renewal of the Canadian justice system. Federal and provincial departments of justice are prospecting for communities who are opening up this new frontier in community justice. Researchers and government representatives rush into communities that are rumored to be breaking "new ground" or to be exploring community involvement with "new" justice initiatives. With interest like that, it's difficult for First Nations communities not to be cautious and a little bit suspicious of justice prospectors coming in from various government departments. The biggest concern of First Nations people is the exploitation of cultural and traditional knowledge by both First Nations and non-First Nations researchers and developers in the journey of community healing and recovery.

Lilles, Heino. Yukon sentencing circles and elder panels

Aboriginal people experience rates of incarceration in Canada disproportionately high in relation to the percentage of the total population they constitute. Many feel that the current criminal justice system in Canada is a significant part of the problem rather than part of the solution.

Linden, Rick and Clairmont, Don. Making It Work: Planning and Evaluating Community Corrections & Healing Projects in Aboriginal Communities

Aboriginal communities have been at the forefront of the restorative justice movement for several reasons. First, there has been a serious failure of the conventional justice system in Aboriginal communities. While Aboriginal offenders are over-represented in the system, Aboriginal people play only a small role in running it. Many Aboriginal people feel that the justice system has been imposed on their communities and does not reflect their needs, their values, or their traditions. Second, traditional Aboriginal justice practices have generally taken a holistic approach emphasizing healing and the importance of community involvement in the justice process. Many of the features of restorative justice have deep cultural roots in Aboriginal communities. The community corrections movement is a means of returning responsibility for justice to these communities. Third, many Aboriginal leaders have recognized that restorative justice practices can be a means of rebuilding their communities. Fourth, the small size of many Aboriginal communities means that treatment can be applied within the context of the whole community. It is far easier to take a holistic approach to healing in a small, rural community where the behaviour of offenders can be closely monitored and where the different institutions that touch an individual's life can work closely together. Finally, restorative justice initiatives have been seen as a step toward Aboriginal self-government, as it is a way for communities to begin to regain control over the justice system.

McCormick, Anna C. Confronting the Past and Building a Future: Peacemaking Circles in a Northern Canadian Community

The most significant changes in the administration of youth justice, based on a transformative philosophy, are occurring in First Nations communities, in response to a history of oppression, near-genocide, culture conflict with, and proven ineffectiveness of the Western criminal justice system. In efforts to reassert power and take responsibility for local issues, address crime and victimization, build community, revive traditional values, increase community capacity and self-sufficiency, create a healthier reality for future generations, and prepare for eventual self-government, one primarily First Nations community in the Yukon has developed and implemented peacemaking circles. This thesis is a result of field research conducted in this community. Based on participant observation and interviews with community justice practitioners, community members, justice personnel, young offenders and victims who have experienced peacemaking circles, it explores several individual, community, and system level challenges which may affect the potential of circles to accomplish objectives. The initiative operates within a community and political environment that is plagued by misinformation, skepticism, mistrust, resistance, apathy, dysfunctionality, power imbalances, state paternalism, and minimal ideological and financial support. Project evaluations cannot be imposed from the outside, before these issues have the opportunity to be addressed, or before the initiative has sufficient time to reach long-term objectives. Failure to address these and other issues could be devastating to the entire restorative justice movement, and doom communities to continued intervention by and subordination to an ineffective and oppressive retributive justice system. Author's abstract.

McGrath, Carla M. Using Alternative Dispute Resolution to Respond to Indian Residential School Abuse.

Roman Catholic, Anglican, and United Churches of Canada directed residential schools for aboriginal children from the 1840s to 1984. Funded by the federal government, the purpose of the schools was to assimilate aboriginal children into Euro-Canadian society. Conditions at the schools were generally poor and damaging to the children. The adverse conditions often included physical and sexual abuse. In recent years, thousands of victims have been filing civil actions against the churches and the federal government to enforce accountability and seek healing and redress. Carla McGrath expresses great sympathy with the perspectives and needs of the victims, but wonders whether civil litigation can achieve an appropriate and meaningful resolution of the issues. She contends that designing an alternative dispute resolution system to handle the civil litigation would be a more appropriate and meaningful option for victims and accused. Toward this end, she discusses the legal aspects of the problem, the parties’ interests and goals, alternative dispute resolution, and design issues and recommendations.

Mcnamara, Luke. The Locus of Decision-Making Authority in Circle Sentencing: The Significance of Criteria and Guidelines

In the 1990s, circle sentencing emerged as a significant feature in the Canadian criminal justice system among First Nation communities. Circle sentencing involves direct participation of community members in sentencing the offender. This sentencing form combines Aboriginal and non-Aboriginal processes and norms of justice. In this article, McNamara examines the practice of circle sentencing against the background of the continuing demand by many Aboriginal communities for greater autonomy in the administration of justice. Specifically, to what extent does circle sentencing represent a genuine shift from non-Aboriginal sentencing processes, with their cultural foundations and aims, to Aboriginal cultural perspectives and practices with respect to law and justice? McNamara explores this question by considering the potential of circle sentencing to shift the locus of decision-making authority from judges within the criminal justice system to community participants in the circle sentencing process.

Miller, Colin. Banishment from Within and Without: Analyzing Indigenous Sentencing under International Human Rights Standards.

After long periods of forced subjugation and assimilation to European cultures and legal systems, many indigenous groups in Canada and United States are reviving and re-applying their traditional approaches to justice. One ancient sanction against wrongdoers that some groups have tried to reintroduce is banishment. In response, some criticize this practice as a cruel and unusual punishment, violating national and international human rights standards. Colin Miller in this paper supports the appropriateness of banishment. He argues that it is consistent with human rights norms and its use should be permitted. To detail his perspective, he discusses the following: the history, aspects, and purposes of banishment; arguments against banishment; and arguments for banishment.

Nielsen, O. Marianne and Zion, W James. Navajo Nation Peacemaking. Living Traditional Justice

This book is about peacemaking as it exists in the Navajo Nation today, describing its origins, history, context, and contributions with an eye toward sharing knowledge between Navajo and European-based criminal justice systems. It provides practitioners with information about important aspects of peacemaking – such as structure, procedures, and outcomes – that will be useful for them as they work with Navajo courts and the peacemakers. (publisher’s abstract)