The Canadian Justice system towards aboriginal offenders

Most legal scholars will concede that the failure of the Canadian Justice system towards aboriginal offenders is one of the nation's most profound disgraces. It is a system where aboriginal peoples are systematically disadvantaged, with the inevitable consequences of overrepresentation in prisons and soaring rates of recidivism. Promising initiatives to address these problems have only recently begun to trump the established policy of blaming the aboriginal community for the heightened levels of criminality.

One proposed alternative to the conventional justice process is a model of social healing called sentencing circles. Derived from aboriginal values of reconciliation, the sentencing circle is a physical manifestation of the principles of restorative justice with an adherence to the sentencing provisions in the Criminal Code of Canada. This paper offers a critical evaluation of the potential for sentencing circles to rectify the injustices towards aboriginal peoples in the criminal justice system.

It begins with an examination of the differences between aboriginal and Euro- Canadian concepts of justice and why there is a need to seek an alternative form of sentencing. The argument is then put forth that the use of sentencing circles should be confined to aboriginal offenders, as it would be neither cost- efficient nor culturally relevant to implement in all justice systems. Finally, this paper will address the possible impediments to the implementation of sentencing circles in the aboriginal community.

The past century has been spent dwelling on unfounded stereotypes to explain the overrepresentation of aboriginal peoples in the Canadian Criminal justice system. It was largely assumed that social pathologies in aboriginal communities1 were to blame for the sad reality that aboriginals embody 2. 8 percent of Canada's population yet represent 17 percent of the federal prison population2. This standard practice of condemning the aboriginal populace for their presence in the justice system has become increasingly untenable.

The unfortunate reality is one of institutionalized racism, where aboriginal peoples are discriminated against the moment they are placed in the crucible of the Canadian criminal justice system. While it is apparent that manifest forms of discrimination contribute to aboriginal criminality, it is the latent effects of subjecting a nation to a justice system so contrary to their cultural traditions that is the heart of this issue. A national crisis has emerged from the inherent inability of the Canadian criminal justice system to reconcile the unique needs of aboriginal offenders.

In Bridging the Cultural Divide, the Royal Commission on Aboriginal Peoples suggested that the criminal justice system is a crushing failure due to the "fundamentally different world views of Aboriginal and non- Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice. "3 One of the primary concerns of the aboriginal model of justice is the reconciliation of the accused with his or her own conscience and with the individual or family that has been wronged.

The compassion expressed in this model is absent in the Euro- Canadian justice system where "victims are often reduced to pawns in the game of State v. offender". 4 The intention of the justice system to prosecute cases in the abstract is revealed even in such minute aspects as the way that cases are described. By referring to the victimized entity as 'her majesty' and the prosecuting lawyer as 'the Crown', the justice system legally accentuates that responsibility for crime has been taken over by the state.

5 The implications of removing the victim from the process are numerous for the aboriginal offender, whose cultural values would favour a holistic approach to restore balance to all parties of the victimization. In addition to the formality of the justice system, the Euro- Canadian principles of neutrality and hierarchy serve to perpetuate the resentment of aboriginal offenders. From an aboriginal perspective, a system in which "laws are accessible only through lawyers and professionals seems very remote, unapproachable, and not connected to the kinship structure of aboriginal communities".

6 One of the primary elements of cohesiveness within an aboriginal society is respect for the wisdom and expertise of the 'Elder'. The structure of the criminal justice system undermines the authority of the 'Elder' by denying this tribal figure the opportunity to contend with the transgressions of the community. The removal of the 'Elders' from the process in favour of an impartial judge with modest comprehension of the aboriginal culture represents the most profound absurdity within the justice system. As aboriginal authors Monture-Okanee and Turpel describe: The person with authority to resolve conflicts among aboriginal peoples

in their community must be someone known to them who can look at all aspects of a problem, not an unknown person set apart from the community in an 'impartial' way. A 'judge' from a non-aboriginal context is simply an outsider without authority. 7 The aversion to instituting a judge as an aboriginal authority figure is but one of several problems plaguing aboriginal offenders in the Canadian criminal justice system. Evidence also indicates that aboriginal offenders are intimidated by the adversarial process and as a result "usually stand mute before a judge, hoping their sentence will be expedited".

8 This sense of estrangement of aboriginal offenders can only be rectified by the inclusion of culturally relevant authority figures and practices into the justice system. The aboriginal concept of justice is notorious for its denunciation of adversarial procedure and neutral arbitration. In contrast to the uncompromising criminal process espoused by the Euro- Canadian justice system, aboriginal philosophies of justice "place a primary emphasis on restoration and reintegration of an offender into the fabric of communal life".

9 The aboriginal justice process is not entirely distinct from the Canadian criminal justice system as both models endeavor to control and deter deviant behaviour and thereby protect the community. The fundamental disparity between these processes, however, arises from the restorative justice belief that "the victimizer must be addressed in all his or her dimensions: physical, mental, emotional, spiritual and within the context of all of his or her past, present, and future relationships with family, community, and Creator".

10 The Law Reform Commission of Canada has similarly recognized that the Aboriginal vision of justice gives pre- eminence to the interests of the collectivity and is essentially integrative in nature. 11 This approach, which involves the personal experience of conflict resolution, challenges the very foundation of the Canadian criminal justice system. The concept of restorative justice also replaces the punitive focus of the Canadian justice system with a conciliatory paradigm which emphasizes the restoration of relations.

The discrepancies between aboriginal and Euro- Canadian conceptions of justice reveal that a system which strives to exclusively punish the offender while minimizing community involvement is unlikely to curb aboriginal criminality. The sentencing provisions utilized in the Canadian criminal justice system provide no deterrence for aboriginal offenders as punishment is a concept which is not culturally relevant to the aboriginal social experience. The evidence is remarkably conclusive that the incarceration of aboriginal offenders merely breeds contempt for the criminal justice system.

In Gladue v. The Queen, the Supreme Court of Canada found that aboriginal peoples are "more adversely affected by incarceration and less likely to be 'rehabilitated' thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so rampant in penal institutions". 12 The sentence of incarceration, so routinely issued in the Euro- Canadian justice system, is analogous to the most severe remedy of banishment under aboriginal systems of justice.

Incarceration also demoralizes aboriginal community values and is "seen as counterproductive, creating further obstacles to the restoration of balance and harmony after an anti- social act". 13 The vital elements of reconciliation and restoration required by the aboriginal society cannot be achieved when the offender has been banished without resolution within the community having first been sought. The conflict of sentencing ideologies between the aboriginal and Euro- Canadian justice systems provides the impetus for instituting alternative sentencing mechanisms for aboriginal offenders.

The above analysis reveals substantial differences between the Euro- Canadian and traditional aboriginal concepts of justice at every level. Various scholars consider these disparities to be so great as to defy any mutual accommodation between aboriginal and Euro- Canadian criminal justice systems. This state of despair has only recently been alleviated by the use of the restorative justice technique of sentencing circles for aboriginal offenders. The sentencing circle was first initiated into the criminal justice process by Judge Barry Stewart in the paradigmatic case of R.

v. Moses. Anticipating the upheaval in aboriginal sentencing practices which would inevitably ensue, Justice Stewart began his judgment by stating that "The reasons for this sentence will take us on an unusual journey". 14 The journey taken in the Moses case involved an unprecedented degree of aboriginal community involvement and input in the sentencing procedure. The sentencing circle represented a manifest attempt to conceive of a sentence within the framework of restorative justice while eliminating the adversarial environment of a courtroom setting.

The advent of the sentencing circle for aboriginal offenders has provided the most viable alternative to the traditional sentencing practices of the Canadian criminal justice system. The structure of the sentencing circle has not deviated substantially from the original model proposed by Justice Stewart, with the exception of slight modifications reflecting the magnitude or significance of the case. One of the essential elements of the sentencing circle is that it is conducted in an atmosphere which is less daunting to the offender than the courtroom.

15 Accordingly, most sentencing circles are held in band halls, or other locations of comfort to all parties involved, where "the professional monopoly of the sentencing process is challenged and lay participation is encouraged". 16 Judges have similarly expressed a willingness to divert from a strict authoritative role in order to accommodate the cultural sensitivities of the sentencing circle: "On March 25, 1996, I [Judge Desjardins] removed my gown, left my courtroom and joined with eighteen other people at the Maliseet Nation at Tobique in a sacred circle".

17 The symbolic gesture of removing the gown eliminates the judge- centered ideology of conventional sentencing hearings and allows the offender to be an equal participant in the process. The changed physical setting combined with a reduced emphasis on the hierarchical nature of conventional court provides the necessary foundation for a meaningful sentencing circle. The extent to which true restitution can flourish within the sentencing circle depends upon the participation of vital members of the community.

The sentencing circle joins the members of a conventional sentencing hearing, such as the accused, the judge, and council, with others normally excluded from the process such as the victim of the offence, aboriginal Elders, and the relevant community. All members of the circle are deemed to have equal importance and are guided by the principles of mutual respect and community responsibility. The privilege to speak without interruption is conferred on all participants in the circle and is itself "a far cry from the adversarial talk of the traditional courtroom where, at the end of the day, the best talker wins".

18 To ensure the partaking of the offender in the process, the circle is typically commenced by the trial judge declaring the maximum possible terms of a sentence. The authority of the trial judge is essentially limited to this initial undertaking, and deference is paid in the remainder of the process to the victim and the community. The technicalities of the sentencing circle serve to reinforce its adherence to the values of restorative justice. The ideal result of this procedure is "a sentence shaped by all participants and endorsed by the community that will be participating in its implementation". 19 Justice Stewart, in his judgment in R.

v. Moses, believed this objective to be best achieved through the existence of two circles. The inner circle is composed of community members directly involved in the discussion, whereas the outer circle consists of those who wish to observe and speak only when called upon. 20 A level of emotion is introduced into the circle as each aggrieved party is allowed to confront the offender and articulate the degree of harm caused to them. The opportunity is then presented to the Elders to articulate the values of the aboriginal community and present an appropriate sentence conducive to the aboriginal legal traditions.

Although this sentence is not binding, it does contextualize the offence and provide the trial judge with culturally relevant sentencing options. 21 Once other parties to the conflict have responded to the statements of the offender, the sentencing circle as a whole conceives of a reparation that would be necessary for the offender to make amends. In the vast majority of cases, the trial judge is not required to prescribe a sentence as the offender voluntarily completes a contract, often with the assistance of the victim.

22 In its purist form, the sentencing circle epitomizes the principles of restorative justice by healing the wounds of the victim while providing a way to reintegrate the offender in the law abiding society. Despite the growing enthusiasm for the potential of sentencing circles to curtail aboriginal criminality, the legal system must be cautioned against the use of this process on an indiscriminate basis. Numerous considerations must be taken into account by the court when considering whether a sentencing circle would be appropriate in the particular circumstance.

The simple fact that a sentencing circle is requested by council does not automatically render the accused an appropriate candidate for the process. However, the qualifications that an offender must possess to partake in a sentencing circle are not well- established and, as articulated by Justice Ryan- Froslie, "whether to hold a sentencing circle is a procedural question solely within the discretion of the trial judge. There are no statutory requirements that the court must follow". 23 The case law has only incrementally begun to formulate criteria for the implementation of sentencing circles. Chief Justice Bayda, in the case of R.

v. Morin, states that the two mandatory criteria relating to sentencing circles are the willingness of the offender to participate, and the existence of a recognized and engaged community willing to participate as well. 24 The basic requirements articulated in Morin were subsequently accompanied by the need for the offender to have deep roots in the community, and the obligatory participation of the Elder. 25 The numerous conditions that an offender must satisfy to merely have access to a sentencing circle has led to accusations that the criteria for inclusion is overly restrictive and inconsistent among judges.

Justices presiding over different jurisdictions have often relied on different elements for inclusion such as the Quebec judge who focuses exclusively on the desire of the accused to rehabilitate himself26 versus the more seasoned judge in the Yukon Territory who requires that the offender plead guilty and express remorse for the crime. 27 There are also profound concerns when judges who are unfamiliar with the case attempt to assess the offender for inclusion in a sentencing circle based on degree of remorse or responsibility. In R. v.

Antoine, Judge Fitzgerald remarked that "the application this week for a sentencing circle was denied and I indicated that it was denied because I was not satisfied that the level of responsibility was present. "28 This value judgment on the part of the presiding judge is deeply problematic as it reflects the misinterpretation of the aboriginal offender that the sentencing circle is designed to rectify. The evidence is well- established that authority figures within the Euro- Canadian justice system often interpret aboriginal behaviors, such as lack of eye contact, as a sign of evasiveness and dishonesty.

In reality, the aboriginal offender is reacting in accordance with his cultural values and in response to an intimidating process. It is clear that national standards must be developed to regulate the consistency of sentencing circles throughout the country. The disparity in the criteria for inclusion throughout the nation has a severe impact on the legitimacy of the sentencing circle. While the need for uniformity in the implementation of sentencing circles is undeniable, the positive contributions of this alternative form of sentencing have not gone unnoticed.

The primary benefit of the sentencing circle is the deconstruction of barriers between the aboriginal community and the Canadian criminal justice system. The sentencing circle affords the aboriginal community the rare opportunity to participate in the rehabilitation and healing of its members. It is the community in orchestration with the victim and the judge which devises and assumes responsibility for the sentence enacted. The willingness of the community to embrace the offender and strive for reconciliation is evident in this passage from the presiding judge in R. v. Moosenose:

It is obvious to me that the community has become involved and has scrutinized her to the extent that the leaders in the community are able to make recommendations about what should be an appropriate sentence because of the special circumstances of the accused… The community therefore seems to be recommending that this offence, although of a serious nature, can be dealt with within the community by appropriate, proper supervision of the accused person by the local band. 29 The heightened involvement of the aboriginal community in the sentencing circle may also result in less societal dependence on the criminal justice system.

Justice Stewart anticipates that the sustained use of sentencing circles will mobilize the resources of the community to prevent crime as opposed to react to it. 30 To this extent, the effects of the sentencing circle are clearly felt within every aboriginal community. The value of the sentencing circle, however, reaches beyond the community and addresses a fundamental power differential which has persisted between the aboriginal and non- aboriginal peoples since the time of colonization. 31 The sentencing circle reflects an appreciation and respect for the unique culture and traditions of the aboriginal peoples.

Despite the pronounced benefits of this restorative model of sentencing, the incorporation of sentencing circles into the realm of aboriginal criminality is not without its critics. Among the most adamant opponents of this process are academics Julien Roberts and Carol LaPrairie, who insist that the use of sentencing circles erodes the integrity of the foundational legal principles. 32 Their first contention is that the utilitarian goals of the sentencing circle serve to undermine the principle of proportionality in punishment. This argument is derived from a literal interpretation of section 718.

1 of the federal government's sentencing reform statute which mandates that "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". 33 Implicit in this assertion is the belief that the sentencing circle is insensitive to proportionality as it has the potential to either minimize the severity of the crime, or exaggerate the effects of the crime. 34 A greater understanding of both the sentencing circle and the meaning of proportionality reveal that this claim is rooted in fallacious assumptions.

The only means through which the justice system can evaluate proportionality is by first ascertaining the severity of the crime. Whereas the conventional sentencing hearing would use empirical investigation to form a conclusion concerning the degree of harm, the sentencing circle answers the question of severity through accounts of those directly affected. Provided that these reports are not conflicting, it is appropriate to assign them substantial weight as "it is a basic tenant of reasoning and morality that we presume someone is reporting reliably and honestly unless we have some reason to think otherwise".

35 Therefore, the contention that a practice will fail due to unreliable testimony of the circle members is an unmerited presupposition. Advocates of the conventional sentencing hearings have also criticized sentencing circles on the basis that increased sentencing disparity is an inevitable by- product of the circle. The issue of sentencing disparity was directly addressed in the judgment of R. v. Moses, where it was acknowledged that there shall be greater variation in sentences through the use of the circle.

36 This case represented a departure from the stringent paradigm which dictated that "similarities should be sought between an individual awaiting sentence and other individuals sentenced for similar crimes- and these past sentences should be used as a guideline for determining the sentence in the present case". 37 The persistent failure of such rigid sentencing practices to diminish aboriginal criminality has provided the impetus for a sentencing philosophy which accounts for individual characteristics.

The validity of this approach is found with reference to the sentencing provisions of the Criminal Code of Canada, which requires in s. 718. 2(e) that sentencing judges consider "All available sanctions other than imprisonment that are reasonable under the circumstances… for all offenders with particular attention to the circumstances of aboriginal offenders". 38 With this provision as its legal foundation, the sentencing circle strives to create community- based sentences which reflect the historical inequity and social marginalization of aboriginal offenders.

The sentencing circle is most accurately described as an accommodative strategy which involves both a deflection of Euro- Canadian sentencing values and a reception of restorative justice principles. It is a fallacy to argue that the sentencing circle undermines the Canadian Criminal justice system in its entirety because vital elements of that process are preserved in the circle. For example, the Crown is a direct participant in the inner circle and "nothing interferes with its duty and role of representing the larger interests of the state".

39 The only modification to its role in the conventional sentencing hearing is the occasion for the sentencing circle to challenge the efficacy of the Crown's proposed sentence. The defence council also plays an active role in the sentencing circle and is often the legal entity which initiates the process by applying to the court on behalf of the client. Furthermore, the sentencing circle abides by the sentencing provisions in the Criminal Code of Canada and is subject to the final discretion of the presiding judge.

While the inclusion of these conventional legal bodies can reinforce the legitimacy of the sentencing circle in the eyes of the non- aboriginal society, Justice Stewart notes that "The Crown and judge who are not familiar with the community must be cautious in opposing, on the basis of the need to 'protect the public', a rehabilitative plan developed by the community'. 40 The fine balance between restorative justice and the sentencing provisions in the Criminal Code of Canada represents the essence of an accommodative strategy such as the sentencing circles of aboriginal offenders.

Although the use of the sentencing circle has yet to undergo empirical evaluation, the aboriginal community has been overwhelmingly receptive to this alternative form of sentencing. The triumph of the sentencing circle for the aboriginal community cannot, however, necessarily be transferred to the context of non- aboriginal criminality. The sentencing circle is a product of the kinship structure and traditional legal values that have customarily pervaded the aboriginal community. Any attempt to institute a sentencing circle for an adult, non- aboriginal offender would appear superficial at best.

The cultural irrelevancy of this sentencing reform would result in unnecessary expenditures of valuable fiscal resources and would contribute to the backlog already suffered by the justice system. In addition, the non- aboriginal community does not have the kinship foundation, such as an equivalent of the Elder, required to sustain a sentencing circle, nor does it have the history of social injustice which would render the Canadian criminal justice system an intimidating process.

It is anticipated that the implementation of sentencing circles for non- aboriginal offenders would also result in an abuse of process as the circle relaxes the strict procedure of the courtroom setting. The pride of the sentencing circle is the involvement of the entire community in the conception of an appropriate sentence. Due to the fact that "some degree of consensus is required, the process might continue for hours, or even days". 41 This process is likely to be prolonged by the adversarial nature that the non- aboriginal community will inevitable bring to the process.

In light of the cultural irrelevancy of the sentencing circle in the non- aboriginal context, it is recommended that this process by confined to aboriginal offenders. The above analysis on the utility of sentencing circles in the aboriginal context would be complete if factors did not exist to hinder its implementation. Although critics may contend otherwise, one potential impediment which can be dispensed with immediately is the notion that aboriginals themselves lack the desire for sentencing reform.

The aboriginal community has embraced the sentencing circle and the Head Chief of the Assembly of First Nations, Ovide Mercredi, has gone on record to state the desirability of such initiatives. 42 Interest in sentencing reforms involving restorative justice is also evident in the aboriginal justice projects which have been created based on the accommodative framework. Nowhere in the literature or case law is there any indication of an aboriginal Chief opposing the implementation of sentencing circles. 43

Perhaps the most significant force of opposition in the implementation of sentencing circles is the "political and bureaucratic resistance to change encountered by aboriginal governments". 44 The lack of political will to institute sentencing reforms is derived from a fear that the loss of power could result in the deterioration of the criminal justice system. Politicians similarly feel obliged not to retract from 'get tough' policies of criminal justice as it may reflect in lowered ratings from a disapproving constituency.

Sentencing circles in particular, with their focus on restorative justice, are vulnerable to allegations of promoting reconciliation at the expense of the punitive aspects of criminal justice. This allegation represents a common assumption within the Canadian criminal justice system that the sentencing circle is a readily accessible means of escaping the more punitive system. A closer comparison of the two systems, however, reveals that the sentencing circle is the more challenging process for any offender as he/she is must make amends with the victim and community without the formal protections offered by the conventional sentencing hearing.

Until society recognizes the intrinsic value and deterrence potential of the sentencing circle, it is improbable that such initiatives will receive the funding necessary to prosper in the criminal justice system. A more discrete challenge to the implementation of sentencing circles lies within the Charter of Rights and Freedoms. The Charter pledges an allegiance to the Euro- Canadian traditional of individual rights with an implied aversion to the rights of the collectivity. 45 Although it can be argued that aboriginal collective rights are guaranteed within s.

35(1) of the Charter, this argument alone could not provide the foundation for the legitimacy of sentencing circles. The Charter also imposes legal safeguards which are blatantly violated in the context of the sentencing circle. For example, the Charter right to avoid self- incrimination is contrary to the aboriginal belief that one is to accept the full account of oneself and to accept the consequences of ones actions. The question of what, if any, Charter rights must be unconditionally imposed upon an aboriginal system of justice is beyond the scope of this analysis.

It is vital to recognize, however, that the sentencing circle is susceptible to challenges under the Charter of Rights and Freedoms. The implementation of the sentencing circle within the Canadian criminal justice system is a triumph for the aboriginal peoples of Canada. It represents an unprecedented recognition of the value of restorative justice and attempts to heal the power imbalances which for centuries have plagued aboriginal and non- aboriginal relations. The use of the sentencing circle has been well- received by members of both the aboriginal community and the judiciary.

The benefits of this alternative form of sentencing are beginning to emerge and thus far, they appear to be far- reaching. Although the sentencing circle provides increased community involvement and reintegration of the offender back into society, it is neither cost efficient nor culturally relevant in the non- aboriginal context. It is recommended that empirical evidence be gathered on the advantages of sentencing circles in the aboriginal community. It is only through this evidenc