Introduction
For years now there have been reports¹ on the high rates of incarcerated Aboriginal² offenders in Canada. According to the Canadian Centre for Justice Statistics (2001) “Aboriginal people represented 2% of the adult population but accounted for 17% of the admissions to provincial/territorial custody in 1998-99 and the same proportion to federal custody” (10). In the western provinces these numbers are even higher “in 1998-99 the proportion of Aboriginal persons admitted to adult provincial facilities in Saskatchewan (76%) was almost ten times that of their proportion in the provincial adult population (8%)” (10). The figures are even more bleak for Aboriginal youth. In 1998-99 Aboriginal youth made up 4% of the youth population in Canada yet they “accounted for nearly [25%] of total admissions to sentenced custody” (p.10). This figure indicates that the incarceration rates for Aboriginal adults are likely to increase in the future. Reforms to the criminal justice system are needed that will lower the high rate of incarceration for Aboriginal men, women and youth. With incarceration on the rise, where there is little chance of rehabilitation, alternatives to prison sentences need to be sought.

Turpel (1993) claimed that

[o]ne of the biggest difficulties with the criminal justice system for Aboriginal people is the fact that it is oriented toward punishment of the offender in the interests of society by imposing a term of imprisonment, fines and, less often, forms of restitution and community service. The two cornerstones of punishment, imprisonment and fines, are both alien to Aboriginal peoples ... [traditionally] the goal for Aboriginal communities after an incident of harm against a person or possessions was to resolve the immediate dispute through healing wounds, restoring social harmony and maintaining a balance among all people in the community. Harmony, balance and community welfare cannot be satisfied when an individual is imprisoned and taken out of the community. In very rare cases, Aboriginal persons may have been banished from the community, but imprisonment might be the offender’s only avenue for healing and restoration. Also, when the offender is removed it may not be possible to restore the victim and the victim’s family or clan to right the wrong. If the offender is paying a ‘debt to society’ through a prison term, what about the repair of the debt to the victim and others in the community (178)?

Are the interests of the Aboriginal community truly being served when their members are sent to distant prisons to do their time, often without access to rehabilitative programs that the community members could have provided? Common sense would lead one to answer in the negative. But is it so easy to return to the traditional ways that Turpel (1993) outlined for dealing with harmdoers?

Dickson-Gilmore (1992) argued that

the practical consequences of the subsequent British and Canadian drives to impose their culture, languages, laws, and legal traditions upon native nations have been to substantially erode much First Nations’ traditional knowledge. As a consequence, many of those nations, who would wish to resurrect their traditional legal structures as alternatives to remaining under Canadian law, are faced with limited sources from which to draw the traditional stuff from ... The magnitude of this challenge varies across nations in accordance with the degree of success governments have had in wasting away traditional knowledge, for as knowledge is lost, so is the means from which a new system, or an old system for that matter, might be constructed in the modern context (481).

This does not mean that new systems or justice initiatives cannot be constructed in the modern context. The inadequacies of the current justice system are expressed in a call for Aboriginal justice initiatives.

It is one of these initiatives, circle sentencing, which is the focus of this paper. Before proceeding with an analysis of sentencing circles, it is necessary to determine what is meant by the idea of Aboriginal justice. Such a concept is quite vast and does not easily fall into a specific definition. The aim here is to arrive at a general definition of what is meant by the idea of Aboriginal justice. A review of what scholars and practitioners deem Aboriginal justice includes enables one to come up with such a definition.

Taking the overlapping concepts put forward by many authors (Sinclair,1994; Nielsen, 1994; Dumont, 1993; Bushie, 1996; Ross, 1996; Dockstator, 1984; and McIvor, 1996), a general definition of what is meant by the idea of Aboriginal justice can be formed. The idea of Aboriginal justice may mistakenly be assumed to be a realistic description of past and/or present traditional community practices. Any definition of Aboriginal justice used today needs to be framed in a modern context. One must also remember that this definition does not contain an exhaustive description of the various concepts that may make up the idea of Aboriginal justice. The concepts outlined herein were relevant for the purpose of the present paper and are therefore somewhat narrow in focus. Focus on the following concepts will allow for an analysis of how sentencing circles further the idea of Aboriginal justice. The idea is that Aboriginal justice would be controlled independently by Aboriginal communities and it would be socially based, in that concepts of justice would be lived and taught through everyday interactions. Crimes often affect the community as a whole, therefore the idea is that justice is a community responsibility. When someone in the community does something to upset the balance of society they would most likely be required to make amends. Ways of making amends would include what can be called “the five R’s”: restoration, reconciliation, restitution, reimbursement, and rehabilitation; all of which would likely be carried out with the help of various community members. Transgressors would likely be held accountable for their actions and they often would have to repay the victim(s) and the community in some way. At the same time offenders would likely be counseled and perhaps punished in such a way that would bring them back to a harmonious place within the community.

The general idea of Aboriginal justice seems to be readily acceptable. It is when the details of Aboriginal justice systems or “Aboriginal Justice Initiatives” are discussed that problems arise. Both are contentious due to differing beliefs and practices both within Aboriginal communities and across communities. It must also be recognized that members of Aboriginal communities are caught up in local, regional/provincial, national, and global relationships in many different ways therefore making the implementation of a system of Aboriginal justice difficult. Even if such a system could be implemented, another complication would be the legality of such systems. Should these systems operate within the framework of the Canadian Criminal Code or should they be recognized as separate systems of justice with rules and procedures decided upon by each community? In the end, it is possible to support the general concepts that form the idea of Aboriginal justice but disagree over the precise concepts and the way these concepts should be implemented.

While Aboriginal people have not been able to implement a system of Aboriginal justice, it is apparent that concessions have been made within the criminal justice system to address the failings of the system and its inability to take into account the particular problems faced by Aboriginal communities. These include sentence advisory committees, community mediation/diversion programs, sentencing panels, and sentencing circles. Sentencing is an area that lends itself, at least to some degree, to the application of elements associated with the idea of Aboriginal justice. Perhaps that is why the majority of the Aboriginal Justice Initiatives in operation to date in Canada deal with sentencing.

A recent initiative in the realm of Aboriginal justice is “circle sentencing” (or sentencing circles). As of yet, there have only been a handful of research endeavours that deal explicitly with sentencing circles. Sentencing circles operate within the Canadian criminal justice system, and therefore within parameters set out by the Canadian Criminal Code and case law/appeals, often taking the place of criminal court sentencing hearings, once guilt has been established. A sentencing circle can be described as a process by which an Aboriginal offender is sentenced by a judge who hears recommendations from the offender’s fellow community members and sometimes victims. Usually these recommendations are given after the community has had a chance to work with the offender for some time. Sentencing circles often take place in the offender’s home community. Victims may or may not participate in sentencing circles. Crown and defence lawyers also participate in sentencing circles.

Sentencing circles intervene in the sentencing process under certain conditions. Disputed facts are often resolved before the circle takes place. Offences, which have minimum punishments above two years imprisonment, are rarely heard. Often only offenders who are eligible for a suspended or intermittent sentence, or a short jail term with probation, make it before a sentencing circle. Although some communities allow sexual assault cases to be heard by a circle, circles almost never hear offences such as murder. In most cases offenders must accept full responsibility for their crimes, and be willing to change, in order to be eligible for a sentencing circle. Judges often outline acceptable ranges of sentencing for community members to work within. Even so, most judges who hold sentencing circles are willing to depart from the usual range of sentencing. Sentencing circles involve a voluntary, though limited, delegation of judicial power to the community members. Sentencing circles may or may not include a traditional/healing component. Even when community members have in place substantive guidelines for how the circle should proceed, judges can supplement and/or override these guidelines with the establishment of specific court procedures. The main thrust behind holding sentencing circles has been to allow community involvement in sentencing decisions. Community members are given the chance to contribute to the rehabilitation of the offender and the “healing” of the community as a whole.

While sentencing circles are now being used in a number of Aboriginal communities, the use of circle sentencing to replace sentencing hearings was actually introduced to Aboriginal communities by judges. Judge Cunliffe Barnett (1995) claimed that “the term ‘circle sentencing’ entered our legal jargon when Judge Barry Stuart delivered his decision in R. vs Moses in the early 1990’s” (1). Judge Stuart embarked upon a circle format for sentencing after realizing how rigid the sentencing process was and how it leads to the dominance of the court system over Aboriginal people (122).

The judge in R. v. Morin ([1995] S.J. No. 457), claimed that sentencing circles have their roots in healing circles, which have been taking place in Aboriginal communities for many years. This judge claimed that healing circles were held to address the wrongdoing of one community member against another. These circles were called healing circles because they were used to heal the wounds of the community by restoring balance. The judge pointed out that this focus on healing and restoration is in sharp contrast to the punishment and retribution focus of the Canadian justice system. In the justice system, the community members and the victims are often only minimally involved, and the “wrongdoer's ‘participation’ in the process can hardly be described as ‘willing’” (P80-83). This is not to say that rehabilitation is not the goal of the criminal justice system. The problem is that punishment, over rehabilitation, is often the focus of the Canadian criminal justice system.

Sentencing circles have introduced a move away from punishment of Aboriginal offenders towards rehabilitation and restoration of Aboriginal offenders. Such a move is one of the core associations with the idea of Aboriginal justice. Sentencing circles are commonly described in terms associated with idea of Aboriginal justice such as community involvement, healing, restoration of balance, and rehabilitation. That is, they are cited as an example of an extension of justice, though it is recognized that they have evolved within the constraints of the criminal justice system and do not constitute an autonomous field of Aboriginal justice.

The purpose of this paper is to summarize the findings stemming from the author’s Master’s thesis (of the same title). A copy of the author’s thesis can be obtained from the following website: www.geocities.com/sentencingcircles. The study that was undertaken explored how sentencing circles are linked to the idea of Aboriginal justice and how control over the process and sentencing in circles will play a big part in establishing this link. The author wanted to find out if the implementation of sentencing circles in Aboriginal communities across Canada had furthered the idea of Aboriginal justice within a Western justice framework, and the concepts associated with this idea. This paper will summarize the findings from the author’s research. The paper will conclude with various suggestions for reform both for the use of sentencing circles in the future and other Aboriginal justice initiatives. Various problems of implementing Aboriginal justice reforms will also be discussed as well as suggestions for future research.

Are Sentencing Circles to Traditional Aboriginal Justice Practices?

Before proceeding further it is necessary to answer the question of whether or not sentencing circles are “traditional” Aboriginal justice practices. When one first looks at the use of sentencing circles the impression may be that Aboriginal communities are returning to a traditional way of dispensing justice. A look at the literature on this subject leaves a different impression. Bonnie Orchard (1998) stated

[t]oday many Aboriginal communities are developing approaches to justice problems which reflect their contemporary needs and values ... The revival of traditional knowledge and institutions is a means to empower and rebuild communities within contemporary realities and to provide an alternative to Euro-Canadian structures. However, this process is sometimes criticized as ‘creating tradition’, rather than reviving traditional structures (20).

Ross Gordon Green (1998) also came across this belief, that traditions were being created, when he examined how traditional dispute-resolution practices had evolved over the years and how these are used in modern sentencing alternatives (28). Green (1998) stated that “[p]ractices recognized and adopted within a culture depend to a great extent on current reality, and traditions may be adapted or invented in response to such reality” (28). Green (1998) commented on the fact that “Judge Fafard of the Provincial Court of Saskatchewan, when questioned whether circle sentencing represented an appeal to tradition, commented that this approach might more accurately be described as “inventing tradition” (29). Green (1998) believed that traditions were vastly wiped out by the colonization of Aboriginal communities across Canada (30). Even if communities have been able to retain and implement traditional justice practices, these practices are ruled over by the Canadian justice system in today’s day and age (34).

A similar sentiment was expressed by Giddens (1991) in his analysis of modernity in a work entitled Modernity and Self-Identity: Self and Society in the Late Modern Age. Giddens (1991) claimed that societal institutions in today’s day and age undercut traditional habits and customs (1). This can be said of the criminal justice system in Canada. Giddens (1991) believed that the demonstration of a need to return to traditional ways is a side effect of the stresses of modern life and that returning to tradition is but one choice that a person/society has to relieve this stress (5). This may be one explanation for the current pre-occupation with the idea Aboriginal justice and traditional dispute-resolution practices among the research community and Aboriginal communities.

Lincoln (1989), in a study of the construction of society, claimed that groups who are faced with present problems, such as Aboriginal over-representation in prison, will look to the past to find a solution that will help the present problem (28). Therefore, Aboriginal peoples will construct traditions by using past ways of dealing with offenders, that are remembered by Elders, to deal with problems such as the over-representation of Aboriginal offenders in prison. Sometimes, unfortunately, traditional teachings die with the Elders who possess them. Such teachings or traditions, which had previously been contained in the cultural "stock of knowledge" (Berger and Luckmann, 1966, 41) of Aboriginal societies have been decreasing for centuries thus making it hard for Aboriginal societies to remember what their traditional practices entailed.

Hobsbawm (1983), who explored the invention of tradition in different societies, claimed that the invention of tradition is to be expected when the social structure, which supported the old traditions is destroyed, such as the case of close-knit Aboriginal communities that were relatively separated from outside ideas and values (4-5). Traditions, which cannot possibly fit into modern society in their true form, therefore, are modified to work within the current justice system.

Dickson-Gilmore (1992) used Hobsbawm’s theory of “invention of tradition” to analyze a traditional justice system proposed by “the People of the Longhouse of the Kahnawake Mohawk Nation” (479). Dickson-Gilmore (1992) found that due to assimilation “many of those nations, who would wish to resurrect their traditional legal structures as alternatives to remaining under Canadian law, are faced with limited sources from which to draw the traditional stuff from which such structures might be constructed” (481).

When trying to revive traditional justice practices for use in modern context it may be that “the past is reinterpreted to conform to the present reality, with the tendency to retroject into the past various elements that were subjectively unavailable at the time” (Berger and Luckmann, 1966, 163). This would mean that communities who are exploring traditional justice practices might be interpreting what was done in the past with their present reality in mind. Therefore, Hobsbawm’s (1983) claim that "invented traditions are responses to novel situations which take the form of reference to old situations" (1) may not be so accurate. Dickson-Gilmore (1992) explained that there is a difference between the “invention of tradition” and the “re-creation of tradition” (490-497). Perhaps what we are seeing is the re-creation of past traditions of community counselling for offenders and victims being made to fit into the present reality of the criminal justice system by introducing sentencing circles.

As stated previously, the general idea of Aboriginal justice seems to be readily acceptable. It is when the details of Aboriginal justice systems or Aboriginal Justice Initiatives are discussed that problems arise. Both are contentious due to differing beliefs and practices both within Aboriginal communities and across communities. For the time being less contentious initiatives, such as sentencing circles, are a way for Aboriginal communities to begin helping offenders.

Procedure for Study

The study upon which this paper is based was a qualitative case study of sentencing circles. The primary data used for the study was seventeen reported sentencing circle judgments, seven sentencing circle applications and three appeals which corresponded to two of the cases studied. All of these cases took place between 1990 and 1999. This form of data was chosen mainly due to its accessibility. If time and money had permitted the author would have liked to take the opportunity to observe sentencing circles in the field and to have a chance to speak to circle participants.

In order to begin an analysis of the data a set of research questions were formulated that spoke to the purpose of the study. At the beginning of the analysis the questions asked were quite broad. As the data analysis progressed the questions were narrowed down in relation to the purpose of the study. A database was set up for each case in order to keep track of the answers. By inputting the answers into a database format it was easier to see the patterns that emerged.

The data collection and analysis was divided into four parts. The first part examined the role of the community members, victims and offenders in the sentencing circle process and sentencing. The second part examined the role of the judges and lawyers in the sentencing circle process and sentencing. The third part examined the overall sentencing circle process. And lastly, an analysis was carried out on the process of determining sentences in the circles.

The names of circle participants are not included in this paper in order to protect the offenders and the victims from further scrutiny due to their involvement with the criminal justice system. For ease of reference numbers were assigned to each case in the original study (see Appendix 1). As well, the names of judges and lawyers are not disclosed in connection with individual cases out of respect, since some of their practices are critiqued.

It is hard to determine how representative the sample used is of other sentencing circle cases. First, because the data is based on individual judges’ interpretations and reports on how sentencing circles proceed and second because sentencing circles will vary in process between individual communities. The internal validity of the study was affected by the fact that only reported judgments, applications and appeals were used. Why these judgments, applications and appeals were reported, while others were not, will affect how well the findings of the study can be generalized to all sentencing circles. What were lost in this method of data collection were the uncensored voices of the sentencing circle participants.


Overall Findings

In the judgments analyzed, the judges were constrained by legislation, case law and appeals and this in turn led to constraints imposed upon the participants of the sentencing circles. Due to the nature of the data used, one can only learn about the roles played by the offenders, victims, community members and lawyers through the discourse of the judges. From this discourse it was hard to tell what roles the offenders played in the circles as the judges did not often quote what the offenders said. In five cases the judges accorded offenders the role of having to pay back their community for the crimes that they had committed. Judges also talked about the offenders’ displays of guilt, remorse, and motivation to change. Other times it was the community members who discussed the offenders’ motivation to change.

As for the question of whether or not there was evidence of significant offender rehabilitation, the rehabilitative steps taken before sentencing by some of the offenders did show that these offenders were willing to change. Some of these steps included counselling, abstaining from alcohol/drugs, maintaining employment, attending healing sessions/circles and meeting with support groups.

The judges, in their judgments, did not concentrate a great deal on the contribution of victims in the circles or the amount of support that was given to victims. In fact, only two of the judges mentioned whether the victims even supported the use of the circle. What the judges did concentrate on was whether or not victims were present in the circle. Other than the three “victimless crime” cases, and the three cases which involved sexual or physical assaults of children (both for which community members spoke about the impact of the offence), victims were present for all but three of the cases. In these cases the victims were non- Aboriginal and they were not members of the offenders’ communities. This indicates that there may be a difference between Aboriginal and non-Aboriginal victim participation in sentencing circles. It was not clear from the data whether this difference was due to differing values and beliefs or due to fact that the non-Aboriginal victims were not members of the community in which the circles were held.

The victims who were not present at the circles submitted victim impact statements. The judges in two cases believed that the victims could have contributed more to the circle, and gained a better understanding about the offender, if they had been in attendance. Even for victims who were in attendance at the circle, the judges did not relay information on the amount of community support for these victims. This is perhaps one area where the advancement of the idea of Aboriginal justice may be lacking. Perhaps more work was done with the victims that the judges did not witness or did not report on. In any case, if justice were to be a community responsibility, the community members would likely attend to the victims as well as the offenders. Even if the victims do not belong to the offenders’ community. Inclusion of the victims is after all a basic tenet of restorative justice.

In contrast, there was evidence of a great deal of community support for the offenders who were going through sentencing circles. One way that community members went beyond the mindset of the Western justice system was to ensure that sentencing was a step in the healing process for offenders. Out of the seventeen cases studied there was only one case where an indication of support from community members was not mentioned. In six cases there were “support groups” in the communities specifically in place for the offenders. These groups helped with such things as carrying out probation orders, cultural training and counselling. The judges’ mention of such community assistance outlines the supportive role that community members can play when involved in the sentencing of offenders.

In two cases the offenders worked with community “justice committees”. These committees carried out many of the same functions that support groups did. In four cases the offenders received, or were given access to, counselling/treatment by community members. In two cases community members committed themselves to helping the offenders with their probation. In one case a community member offered to interpret for the offender if he had to go for a psychological assessment. In another case the community members wanted to help the offender to ‘reintegrate’ back into the community since he was in foster care and custody for so long. This data suggests that community members can use sentencing circles to further the idea of Aboriginal justice by ensuring that justice is a community responsibility.

By ensuring that offenders are being given opportunities to begin on a healing path community members are showing that healing and balance is a serious consideration in the use of sentencing circles, not only for offenders but also for the community as a whole. By insisting that offenders should be kept out of jail and be given restorative sentences instead, as the community members did in most of the cases, there is an assurance that the community is being protected from offenders who go to jail and come back out with more problems and anger than they went in with. Looking at the causes of crime, which was done in a majority of the cases, also allowed community members to address the problems that may have led the offenders down the wrong path. The offenders’ rehabilitative plans often included ways that these problems could be addressed. In one case the judge quoted a community member as saying that healing can only be achieved by supporting the offender. This is one way that community members can begin to ensure that justice is a community responsibility.

Overall, the data suggests that out of the non-judicial participants in the circles, the community members had the greatest level of power, with the offenders having some level of power by outlining their own sentencing plans. The victims seemed to have the least amount of power in the sentencing circles.

Although defense lawyers and Crown attorneys were involved in all of the sentencing circles, their roles were not discussed to a large extent by the judges. As reported in the judgments, the main roles of the Crown attorneys were to make sentencing submissions and relay the interests of the State - which may lead them to oppose sentencing circles or appeal the sentences given. The main roles of the defense attorneys were to assist in the development of a sentencing plan for the offender, in conjunction with the community members. These diminished roles, as outlined by the judges, may be due to the fact that offenders, community members, and victims are given the chance to represent themselves in the sentencing circle process.

The judges in the cases studied had extensive roles to play in the sentencing circles. The first role that judges play is deciding upon the eligibility of a case to proceed to a sentencing circle. Perhaps the most contentious issue when discussing eligibility criteria is whether or not offenders who are facing possible sentences of two years or more in jail should be eligible for a sentencing circle. One judge, when reviewing an application, argued that when a sentence of two years or more is warranted a probation order cannot legally be imposed, therefore these offences should not be eligible for circle sentencing. In this case the judge “rejected an application to hold a sentencing circle by an accused convicted of aggravated assault. He held that ‘at the very least’ the offender should be eligible for a suspended sentence, or an intermittent sentence or a short term of imprisonment accompanied by probation. He went further to state that where a penitentiary term (two years or more) is thought by a trial judge to be appropriate, there should be no resort to a sentencing circle. As well, the offender must be genuinely contrite and be supported by his/her own community, which is willing to provide supervision and support and take responsibility. Finally, the offender should be sincere in reforming with the help of the community (Quigely, 1994, 290).

A judge in one of the other cases also declared that a circle might be inappropriate when there is an expected sentence of two years or more in jail. Ross Gordon Green (1998) has said that “this line of reasoning suggests that sentencing circle participants have no role to play if probation is not a possible outcome of the conventional sentencing process” (79). This in fact is not the case and not all judges share this view.

The crime committed may generate a sentence of two years or more to be served in prison in a sentencing hearing, but this does not mean that a sentencing circle decision would impose a similar sentence. Unless a mandatory minimum is in effect for the offence, Section 718.2 (e) of the Canadian Criminal Code, which reads “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders” gives judges, and therefore community members, in a sentencing circle, the power to impose sentences other than jail time. The judge in another circle application case pointed out that even if jail time was warranted, at least in a sentencing circle, this jail time can be shortened to less than two years so that a probation order can be utilized as part of the sentence.

Another area of contention was whether offenders who have pled not guilty should be eligible for sentencing circles. The judge in one sentencing circle application case stated

I am reluctant to conclude that as a matter of principle a person may not be sentenced in a sentencing circle after a not guilty plea and a conviction at trial. I do not think that an accused person should be inhibited in his constitutional right to have the Crown prove the case against him. However, if a person continues to deny responsibility for the offence after the conviction or does not fully accept the findings of fact made by the trial judge, in my view, that person would not be a suitable candidate for a circle sentencing.

While not all communities or judges demand that a plea of guilt be a criterion of eligibility, there are judges who believe that a plea of guilt is needed in order for a sentencing circle to be held. Some judges are of the view that offenders who had pled not guilty and were found to be guilty applied for sentencing circles looking for an easy way out. The concern was that such offenders had not accepted responsibility for their actions.

Other than the debate over these two issues, from the cases studied the eligibility criteria outlined was quite compatible with the idea of Aboriginal justice. For example a circle can be considered when: the offender is willing to change, the offender is remorseful; the offender wants the circle to take place; the offender is willing to commit to and follow a healing plan; the offender will accept full responsibility for the offence in the circle; the offender has been in the community his or her whole life; there is a supportive community where elders and non-political community members want to be part of the circle; the victim supports the use of the circle and is willing to participate without coercion; and the community supports the victim.

Once a decision about eligibility is made the judges are also responsible for the overall process and sentencing in the circle. This responsibility served as a constraint on the community members. In two cases the community members had in place extensive guidelines for how sentencing circles should proceed. Regardless of the process in place, in one case the judge implemented on top of the community guidelines eligibility criteria and supplementary procedures that should be followed in the circle. Judges also imposed safeguards in two other cases such as allowing for recorded transcripts of the circle proceedings. In one case the judge shaped the entire process as the judge had implemented the circle in the first place. In contrast, the judge in another case joined the community members for the purpose of circle sentencing and he let the community members lead much of the process. The judge in this case claimed that he wanted to encourage community involvement in the process therefore he stepped back from the organizational details and only remained involved to the extent to ensure that individual safeguards were in place.

Usually when the judges took a more hands off approach with regard to the process, traditional practices of the communities were included in the process. Such practices included explaining the significance of the circle, opening and closing the circles with prayers, smudging with sweetgrass, and using a talking stick to guide the input of members. In sharp contrast to these practices was the finding in one case where the judge controlled the entire process and in the end thanked the community members for helping him come to a decision on sentence. While judges have the ability to delegate their power over the process of the circle to community members - they do not have this discretion when it comes to imposing sentences.

Under s. 723(3) of the Canadian Criminal Code judges can require evidence to help them with their sentencing decision (Green, 1998, 155). This does not mean that the community members will have the final say as to sentence. Some of the judges discussed Sections 718, 718.1, and 718.2 of the Criminal Code in relation to using sentencing circles.

Section 718 outlines the purpose of sentencing, which is to prevent crime and provide for a safe society by “imposing just sanctions” (http://canada.justice.gc.ca/en/laws/C-46/39774.html). The objectives of sentencing under this section of the Code are: denunciation, deterrence, separate offenders from society, rehabilitation, provide reparations for harm done, and promote sense of responsibility in offenders (http://canada.justice.gc.ca/ en/laws/C-46/39774.html). All of these objectives, with the exception of separating offenders from society (which often means jail) are similar to the concepts associated with the idea of Aboriginal justice. Even though the judges were responsible for the ultimate sentence given in the sentencing circles they would often accept the recommendations put forward by the community members. In all of the cases where community members asked that offenders not be sent to jail, the judges complied by not imposing jail sentences. In six cases the judges claimed that the offenders would have received jail time had it not been for the support of the community members. Although the offenders in three cases were given custodial sentences, these sentences were served in the community. In four cases the judges implemented most of the community suggestions for sentence in the actual probation conditions given to the offenders.

The area that community members have the most influence over the sentences given is in suggesting possible conditions for probation. Unfortunately, due to legislative restrictions, if the offenders breach any of their conditions they will be brought back before the judge for sentencing. There is no consideration given to as to the community members’ role if offenders are charged with a breach of conditions.

Section 718.1 outlines the fundamental principle of sentencing, which is, “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (http://canada.justice.gc.ca/en/laws/C-46/39774.html). The findings, based upon a comparison of the sentences given by the judges, show that most of the judges handed out different sentences for the different cases that they presided over. Concerns with sentencing parity by the judges, Crown attorneys, and the general public will affect the level of influence that community members have over the ultimate sentence given and the use of restorative dispositions for Aboriginal offenders. This may be why the judges in seven of the cases established sentencing ranges at the beginning of the circles. In the end though, the sentences fell within these ranges in only two of the cases. It would seem that judges actually impose these ranges in order to give offenders and community members an indication of what range of sentence the offenders could have expected had they not gone through the sentencing circle and the type of sentence they can expect if they breach any of their conditions.

Other legislative restrictions such as mandatory minimums, starting point/threshold sentences, and the objective of sentencing parity also affect the level of influence that community members can have over the sentences given. None of the offenders in the cases studied were facing mandatory minimum sentences. This may reflect a pattern whereby offenders who do commit offences for which mandatory minimum sentences are warranted are denied the opportunity of a sentencing circle. In two cases the Crown attorneys contended that the offences required threshold sentences. These thresholds were not met and the Crown attorneys appealed both of these cases.

It is the last two principles of sentencing, subsections 718.2 (d) and (e) that are especially important for sentencing circles. These sections read

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (http://canada.justice.gc.ca/en/laws/C-46/39774.html).

The judge in R. v. Gladue (1999) claimed that this

provision is not simply a codification of existing jurisprudence. It is remedial in nature and is designed to ameliorate the serious problem of overrepresentation of Aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision's remedial purpose real force (Introduction to Case).

This section of the Code effectively allows judges to consider sanctions other than imprisonment when deciding what principles and objectives of sentencing should be given priority. This allows for the use of community sanctions as a sentence, which is common in sentencing circles. This section also enforces using jail as a last resort, especially when considering the situation of Aboriginal offenders. This legislation allows judges and community members to focus more on formulating a rehabilitative sentence, in line with the idea of Aboriginal justice, for the offender. While some judges have taken it upon themselves to devise sentencing plans that will help to rehabilitate Aboriginal offenders, subsections 781.2 (d) and (e) provide a push towards this practice.

The evidence suggested that rehabilitation was the guiding sentencing objective in the sentencing circle cases studied. The findings show that the judges, while concerned about other sentencing objectives, stressed that rehabilitation was the key objective to ensure that offenders begin to change their ways. Rehabilitation would be jeopardized if the offender was not ready to change.

The breakdown of sentences given in the cases were: one jail term to be served in jail, eleven suspended sentences with probation, two conditional sentence orders, one curative discharge, one sentence of open custody, and one sentencing adjournment for one year (which was appealed). The probation conditions that accompanied these various sentences all incorporated “the five R’s” associated with the idea of Aboriginal justice, which are restoration, reconciliation, restitution, reimbursement, and rehabilitation. The probation conditions varied from the usual conditions of keeping the peace, reporting to a Probation Officer, remaining within the jurisdiction of the court to abstaining from alcohol/drugs, attending counselling and anger management/support groups, taking life skills courses, community service work that usually had a traditional focus such as working in a local healing camp or working with Elders, attending residential treatment programs, and attending healing circles.

Under s. 731(1)(a) of the Criminal Code an offender can be given a suspended sentence if “no minimum punishment is prescribed by law” (http://canada.justice.gc.ca/en/laws/C-46/39774.html). In the cases studied, suspended sentences were the favoured sentencing tool of sentencing circle judges pre-1997. Suspended sentences with varying probation orders were given out in eleven of the seventeen cases studied. Suspended sentences are community-based sentences, which allow offenders to carry out their probation orders in their own communities. Green (1998) stated that the “Criminal Code requires that a probation order be imposed in addition to a suspended sentence (which allows the court to re-sentence an offender if he or she commits another offence during the probation period), to a fine, or to a period of incarceration” (26-27). It is the shaping of the probation order that allows community members to have the greatest control over the sentencing process and therefore have a chance to further the idea of Aboriginal justice. Since suspended sentences will be served in the community in question, the community members will work very closely with offenders, while they are on probation, often providing both services and support.

The judges in four cases mentioned the fact that if the offenders breached any of the conditions of their probation while under a suspended sentence, that they would be back before the court for sentencing. This is made possible under s. 732.2(5)(d) & (e) of the Canadian Criminal Code which allows judges under these circumstance to either revoke the suspended sentence and “impose any sentence that could have been imposed if the passing of sentence had not been suspended”, or change the conditions of probation as desired, or extend the probation period for up to one year (http://canada.justice.gc.ca/en/laws/C-46/39774.html).

If the judge, and the Crown, are determined that the offender should receive a jail sentence, and if this term is for two years or less, there is the option of relying on Section 742.1 of the Criminal Code. Section 742.1³ allows judges to sentence offenders to two years or less imprisonment to be served in the community. While serving a conditional sentence the offender will abide by the conditions of the conditional sentence order. If the offenders break any of these conditions the court may

1. take no action;
2. change the optional conditions;
3. suspend the conditional sentence order and direct
   1. that the offender serve in custody a portion of the unexpired sentence, and
   2. that the conditional sentence order resume on the offender's release from custody, either with or without changes to the optional conditions; or
4. terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence (http://canada.justice.gc.ca/en/laws/C-46/3977 4.html).

While judges have the ultimate control over sentencing they too are bound by such restrictions of the Criminal Code.

Section 742.1 came into effect September 3, 1996, therefore it was only in effect when four of the cases studied were heard. In two of the cases the offenders were given prison sentences to be served in their communities and in one case the offender was placed in open custody. This evidence suggests that this section has had an impact on sentences arrived at in sentencing circles. For conditional sentence orders to work in Aboriginal communities, the community members must support such a sentence and be willing to work with offenders while they carry out their sentence. The use of sentencing circles and community support for them would be conducive to judges deciding upon a conditional sentence order.

For the first few years of sentencing circles in Canada, judges often relied on using suspended sentences as an alternative to sending offenders to jail. This carried with it a lot of criticism from the outside public that jail terms were not being given when they should be. The use of conditional sentence orders may allay some of this criticism but not all of it. There are still many competing views on how this legislation should be applied in given cases.

The use of restorative sentencing practices may lead to sentencing disparity. Looking at the established sentencing ranges put forward by the judges and the ultimate sentences given one can see that the sentences in the cases studied did lead to sentencing disparity. Disparity in sentencing for such initiatives as sentencing circles is not surprising as the members of each community will have different wishes and aspirations when it comes to dispensing justice (Green, 1998, 70). The findings of this study suggest that sentencing disparity is only an issue because the possible jail sentences reflected in the judges’ established sentencing ranges were not imposed. Even though sentencing disparity is a result of the use of sentencing circles, this does not mean that the sentences given were by any means lenient. Actually the community dispositions were viewed as being harsher than a jail sentence by the judges and community members in four of the cases studied. Orchard (1998) found that

the same commitment to rehabilitation is not demanded of a person sentenced in the usual manner as is expected in a sentencing circle. Experience may show that it would be easier to have an ordinary sentence imposed and served, than it would be to go through the healing process, community rebuilding and rehabilitation required of a circle’s sentence (122-123).

Rehabilitative sentences ensure that offenders are held accountable for their actions, offenders have to make restitution for their offences, and they have to reconcile with their victim(s) and their fellow community members. None of this is done when offenders are sent away from their communities to serve a prison term.

This is comparable to what Green (1998) found at the conclusion of his study on sentencing alternatives in Aboriginal communities. Green (1998) stated that

although the Aboriginal practices described [i.e. sentencing circles] formed an integral part of the sentencing process, their inclusion appeared to be more of an adaptation to conventional court protocol than an adoption of traditional Aboriginal dispute-resolution practices. Conventional Canadian adjudication practices were retained, with the judge controlling the final sentencing decisions ... Despite the continued prominence of judges and lawyers, these community sentencing approaches nevertheless demonstrated the flexibility of Canadian criminal law, in allowing local participation and in recognizing traditional Aboriginal practices during sentencing (134).

It is this flexibility and recognition that allows for the furthering of concepts associated with the idea of Aboriginal justice.

The reader should keep in mind that the more specific findings, such as the roles of the communities and the offenders, are applicable to the cases at hand but not necessarily generalizable to other sentencing circles across the country. One must always remember that different Aboriginal communities have different beliefs, values, and practices. Therefore, what one community does in the way of sentencing circles may not work or be appropriate for another community.

The Need for Reforms

Justice reforms are needed in order to address the rising incarceration rates of Aboriginal men, women and youth across Canada. Even if such reforms mean statutory reform, which is not needed to continue with community initiatives like sentencing circles (Green, 1998, 155). Throughout the report of the Royal Commission on Aboriginal Peoples (1993) many Aboriginal people said that now is the time for healing. Aboriginal communities have begun to develop community-based alternatives because the conventional justice system has failed their members. Berma Bushie (1996) explored contemporary Aboriginal justice models and she believed that the

restoration of balance [in Aboriginal communities] is more likely to occur if sentencing itself is more consistent in process and in content with the healing work of the community. Sentencing needs to become more of a step in the healing process, rather than a diversion from it. The sentencing circle promotes the above rationale (61).

The push for sentencing circles started with the hope that it would help to reduce the high incarceration rates of Aboriginal offenders in Canada. Green (1998) stated that it

is unrealistic to expect changes in sentencing practice alone to achieve a significant reduction in the incarceration rate of Aboriginal offenders; however, exploring sentencing alternatives for Aboriginal offenders is one way that the rate of incarceration for Aboriginal offenders in Canada might be reduced (17).

While incarceration rates may be reduced, what is equally important is that recidivism rates should be reduced. Sentencing circles in theory should lead to lower recidivism rates among offenders who go through them.

Another way that rates of incarceration for Aboriginal people may be reduced is by looking at the causes of crime. Ross (1996) believed that once communities begin to look at the causes of criminal acts and address these causes the number of crimes will begin to lower therefore leading to a retreat of the Western justice system (218).

If initiatives such as sentencing circles are to continue within the framework of the criminal justice system there are certain practices that should be implemented. Adjournments should be a requirement if a judge is going to hold a sentencing circle for the first time in a certain community. The judge will have to learn more about the community in order to make effective decisions. Discussions need to be held with the community members prior to the use of sentencing circles to determine the resources available in the communities and the level of comfort that community members have with such sentencing initiatives. The willingness of community members to participate in and shape the sentencing circle process will have to be measured and factored into a determination of whether or not a circle should be held. Support groups for both the victim(s) and the offender should be established. All of the above requirements should be met before a sentencing circle is held in an Aboriginal community.

As for participation in sentencing circles, anyone who is interested in participating in the circle in a positive way should be allowed to do so. Elders and community members should be encouraged to bring traditional practices to the circle. If it is a question of room restrictions, a larger area should be sought. There may be people who are dissuaded from participating in sentencing circles because circles are time consuming. But the benefits far outweigh the sacrifices. The more time and effort that judges, offenders, community members and victims put into the circles, the more healing will take place.

The future of Aboriginal offenders is inextricably linked to the future of Aboriginal communities. By healing offenders, community members are investing in their own future. It is the community members who are often responsible for offenders during their sentences, therefore the community as a whole should be encouraged to participate. Sentencing circles can have a significant impact on both those who participate verbally and those who are only observers. While it may be necessary to hold a sentencing circle in a city courtroom, everything should be done to ensure that the arrangement and process of the circle has ties to the Aboriginal community in question.

In the cases studied there were some communities who already had guidelines in place for how sentencing circles should proceed. It would be ideal if all communities who hold sentencing circles could make up their own extensive guidelines. Hopefully in the future, if sentencing circles are to remain within the jurisdiction of the court, there will be enough cooperation between the courts and the communities that an overriding of community guidelines, by the judge, is not needed.

Communities who hold sentencing circles should have in place both offender support groups and victim support groups, regardless of the offence. In order for victims to fully participate in sentencing circles, they need to feel secure that they will not be re-victimized and that their concerns will be addressed fairly. Counselling for both the offender and the victim should take place before and after the sentencing circle. In order to help heal members of the community, community members must do more than provide input at a sentencing circle. They can counsel offenders and allow them access to treatment and healing ceremonies. The participation of offenders in such initiatives will also show judges and other members of the community that offenders are willing to change and that they will be committed to a rehabilitative plan.

Sentencing circles are one way that communities can start the healing process for offenders, victims, and the community as a whole. Chartrand (1995) argued that

Aboriginal communities must begin a process of restoration to heal themselves. That restoration process begins with respect. To regain respect, members of aboriginal communities must have control over their lives, including control over their social order systems. Circle sentencing can be seen as an important building block in the process of restoring aboriginal community respect and healing. In the circle sentencing process, this restoration can be achieved by allowing the community to have final control over the decision-making that determines the appropriate disposition for an offender (878).

The fact is that Aboriginal communities must begin to question how much control they have over the decision-making in sentencing circles.

Shaping Aboriginal justice initiatives within the Canadian justice framework is not the ideal. By duplicating what has already been done, only in a different way, Aboriginal communities will be hindered in their search for a way to heal their members. McIvor (1996) discussed the problem that she saw with the sentencing circles in the North West Territories and Labrador. She claimed that the

aboriginal sentencing circle was developed by white judges to involve the community in sanctioning or penalizing aboriginal offenders. The circle provides for a fly-in judge who controls the process a fly-in crown attorney, a fly-in social worker, a fly-in police officer and maybe a fly-in defense counsel. All are foreigners in the community ... The aboriginal sentencing circle may also include fly-in elders, as they did at South Island. They did not actually fly in, they drove in from another aboriginal community. From the community itself, there may be some elders, the accused and the victim and his or her family. This is not aboriginal justice. It is not an aboriginal justice initiative because it involves foreign laws, and foreign criminal justice administrators ... much of the focus of aboriginal justice theoreticians has been at the rear end of the criminal justice system, mainly, ‘sentencing’, with little focus on crime prevention, social control and social rules at the community level. Aboriginal justice is made up of more than its rear end, and more than just getting community involvement in the punishment of aboriginal offenders. When you hear about sentencing circles and the involvement of aboriginal elders and other community members, I hope you will remember we are dealing with the rear end of the Criminal justice system (5).

One can argue that sentencing circles are an Aboriginal justice initiative, concepts associated with the idea of Aboriginal justice are furthered with the use of sentencing circles. It could be conceded, however, that sentencing circles are a reactive initiative and there is a need for more proactive initiatives.

Problems of Implementing Reforms

Both Gosse (1994) and Orchard (1998) have attempted to explain why Aboriginal justice initiatives have been slow to come about in Canada. Gosse (1994) cited one of the main reasons as being “political and bureaucratic resistance to change encountered by Aboriginal governments” (16). This resistance to change is based on a failure to understand the goals of Aboriginal groups, a resistance to give up established power holdings in the justice arena, a fear that such a loss of power “could result in a deterioration of justice services”, a lack of resources and a lack of government “inertia” (16-17). Orchard (1998) also found that Aboriginal justice initiatives may not be established in the near future due to a lack of political will, little support from non-Aboriginal people and resourcing concerns (162). Green (1998) also found that resourcing concerns were a problem for Aboriginal justice initiatives including “support, treatment, and counselling for victims and offenders, and, in cases involving abuse, close supervision of offenders and protection of victims” (82). The judge in one case stated that there is also a need for professionals within the communities with skills to help offenders and victims (i.e. psychologists, addictions counsellors, rape crisis personnel). More and more Aboriginal justice initiatives are being funded in Canada every year. Even so, proper resourcing of these initiatives is still an issue.

A lack of community consensus may also inhibit the implementation of Aboriginal justice initiatives in communities across Canada. Even in the cases studied it was not known if the views expressed in the circles were representative of the views of the community as a whole. In the same vein, Orchard (1998) found that there is some concern, especially among women, that the courts are going into communities and holding sentencing circles where either the community members are not receptive to them or are not ready for them (107). Orchard (1998) went on to state that the

initiative to transfer responsibility [for justice] should come from the community, not from governments or judges. The community’s and victims’ needs must not be compromised by the needs of the offender or the need to make changes in the justice system. Community-based services must have clear guidelines and standards, which reflect the interests and needs of all members of the community, especially the victims. Because women are often victims, they must be involved in the design and delivery of offender programs (107)

Orchard (1998) also found that among community members there “may be fears about new power structures and internal power struggles for control of new institutions or areas of jurisdiction” (20). Orchard claimed that traditional structures would only work if the interests and concerns of everyone in the community were addressed (21). This is a concern that many researchers raise when exploring Aboriginal justice initiatives.

Ross (1996) also found that one problem Aboriginal women have pointed out about gaining control over justice issues is that “certain power groups would use power over justice only for their own benefit, by prosecuting their blameless enemies and not prosecuting their abusive friends” (200). Ross (1996) claimed that the women he talked to suggested that if “community courts” are to be established that the Western courts not withdraw from the communities completely until it is known how these communities will “use their new-found jurisdiction” (200). Ross (1996) also found that many of the women he talked to “wanted to restore the situation where no one received such power over others, where such decisions came out of the clans and families from the bottom up, not the top down” (54-55).

Green (1998), in his final analysis, considered the evolution of community sentencing and whether the move was toward total autonomy from the Canadian justice system or “towards increased local participation and control within the existing system” (160). He concluded that for either approach to be reached the following courses of action needed to be taken

[1] appellate recognition and support of these approaches across Canada will be crucial to the continued evolution of community sentencing ... [2] expansion of government-funded resources, specifically providing trained personnel and treatment facilities ... will increase the community-based sentencing options ... [3] a focus on victim participation and support ... [4] negotiation of protocols between local communities and representatives of the justice system. These will establish the conditions precedent to and the procedures to be followed within such community sentencing approaches ... [5] Development and expansion of criminal mediation. Mediation was the only model studied that diverted full decision-making power from the prevailing system to local community members ... communities will be allowed to regain some measure of control over criminal dispute resolution (160 -161).

There are two problems with this proposed course of action. First, the call for government-funded resources is problematic. Yes, government-funded resources are needed, but at what expense. The government is not in the practice of providing resources without controlling to some extent how these resources are used. If community justice programs are to be funded by the government there is a possibility that the communities will not have total control over how these programs are run. Second, a negotiation of protocols should be done in such a way that they are not counterproductive to increasing local participation and control of justice initiatives. Even if communities establish their own systems of justice, separate from the Western justice system and the Canadian Criminal Code, legislation such as the Constitution and the Charter will most likely still apply to these systems. Not that this is an undesirable situation. The concern is, that if these products of a Western governmental system still apply to Aboriginal community programs what other products of this system will apply? Ross (1996) argued that Aboriginal communities should not go about justice in the same way as the Western system (188-201), yet such an approach and mindset is hard to break free of (15). Turpel (1994) claimed that

understanding how to work with the other side requires some critical reflection, dialogue and creativity. One cannot erase the history of colonialism, but we must, as an imperative, undo it in a contemporary context. The challenge of this process is great because we are not conversing outside the colonial context. We are aware that it is part of what we say and do, and that we are attempting to resist and dismantle it. Perhaps this explains why some proposals for an Aboriginal justice system are simply the Canadian justice system with Indians instead of non-Indians in all the conventional roles. If this is the option a community chooses, I would like this choice to be made as a truly post-colonial option, as opposed to a neo-colonial turn dictated by those in the system (208-209).

For the time being, Aboriginal justice initiatives, such as sentencing circles, are operating within the Western justice framework. These initiatives do allow for the advancement of concepts associated with the idea of Aboriginal justice. Perhaps in the future Aboriginal communities will be able to establish their own systems of justice to further this goal.

Next Steps and Further Research

The purpose of the author’s study was to expand upon what has been found by other researchers by exploring how sentencing circles are linked to the idea of Aboriginal justice and how control over the process and sentencing in circles will play a big part in establishing this link. The author’s thesis did show how circles proceed in individual communities and how circles are constrained by the justice system and therefore by judges. The author found that community members do have some influence over the process. However, the influence of community members can only go so far, as judges retain the ultimate power in circles since they alone pass the final sentence. Sentencing circles are a positive step toward healing offenders and furthering the idea of Aboriginal justice. While sentencing circles a