Aboriginal Justice

Alternative measures programming was developed to deliver programming for Aboriginal people who come in conflict with the existing judicial system. Alternative measures programs provide increased options for police discretion to deal with minor offenses by way of informal cautioning, and make referrals for post-charge or pre-charge diversion. In other words, offenders are diverted away from the formal court process, both prior to and after being charged with an offence. The Crown Prosecutors' Office also has the discretion to refer a matter to alternative measures. These programs include: victim-offender mediation and diversion; youth programming; sentencing circles; family group conferencing; healing circles; crime prevention workshops; after care reintegration initiatives; section 81 initiatives; probation; and other programs that focus on healing and the use of First Nations' traditions and healing models.

This Restorative Justice approach attempts to place the focus on the behaviour of the offender rather than on the offender himself. It also focuses on the context within which an offence took place. Accordingly, more attention may be paid to offender needs, such as treatment for alcohol or drug addiction. Shame is central to restorative justice models, and specifically family group conferences. Most people avoid culturally inappropriate behaviour because of internal and external shame. The external source of shame comes from the disapproval of one's family and peers, leading to a loss of social status and affection; the internal source of shame comes from a person's conscience, and a sense of what is right and wrong. Social disapproval from one's own community is thought to be a more effective deterrent to repeated offending behaviour than punishment meted out by state representatives.

The province of Saskatchewan has committed substantial monies to restorative justice approaches, with matching funds provided by the government of Canada. Because the design of programs is flexible and open as well, Saskatchewan may take the initiative to provide new programs, as long as they are approved by the Attorney General of Canada or by his representative. Under Sections 717 and 718 of the Criminal Code and Saskatchewan's Justice Initiative, sentencing options have expanded to include alternative measures diversionary programs. Courts have the discretion to allow for “circle sentencing” under Saskatchewan Justice's Restorative Justice Initiative, which provides further sentencing options for judges.

The restorative justice approach adopted by the province of Saskatchewan views crime as a personal matter between individuals. This approach focuses on: problem-solving; involving victims, offenders and community, as well as responding to their needs; forgiving the offender; and reintegrating the offender back into the community. The restorative justice approach to sentencing was introduced to the province through Saskatchewan Justice (Minister's Order) under Section 717 of the Criminal Code (Canada), dated September 30, 1996. Flexibility of diversion options under Saskatchewan's initiative include: restitution/compensation (reparation for damages or loss); referral to a program such as crime prevention; referral for drug/alcohol treatment or health/mental health counseling; community or personal service work for the victim; victim-offender mediation; culturally appropriate activities for Aboriginal people; or other arrangements that may combine some of the above options.

Under Saskatchewan Justice's Restorative Justice Initiative, communities have some discretion to shape programs to fit their needs. The main alternatives include police cautioning, pre-charge diversion, post-charge diversion, victim-offender mediation, family/community group conferencing (community justice forum), and sentencing and healing circles. Aboriginal communities have the flexibility to develop diversion programs consistent with existing policing agreements and community justice programs. The agency administering the program has the discretion to determine whether an offender is suitable for their diversion program. Victim refusal to participate may exclude participation in a mediation program. However, although no criteria exist in Saskatchewan Justice's Diversion Program Policy framework for the use of surrogate victims, this has become a popular process in Saskatchewan.

Eligibility criteria for alternative measures for adults are quite broad, and include the following: the evidence is sufficient for a criminal charge to be laid; the offence can be prosecuted under the law; the offender must take responsibility for the behaviour and has not been diverted more than twice in the last three years or failed a diversion in the last six months; and the offender has no, or a minimal, past record of similar offences or recent charges.

Mediation is an informal, voluntary process in which a neutral third party facilitates parties in conflict to come to a mutually satisfactory resolution of a dispute. In victim-offender mediation, the offender must be willing to take responsibility for his/her actions and agree to be a participant. If the victim is not willing to participate, in some cases a surrogate victim may be used in his/her place. This approach is meant to restore the physical, emotional, psychological, and spiritual harmony of each person, as well as the relationships between victims, offenders, and the community.

The family/community group conferencing/ community justice forum model initially came from the Maori of New Zealand, and was modified for dealing with criminal offences in Australia and North America. This model, while similar to victim-offender mediation, includes all those people directly affected by a crime, including victim(s), offender(s), police officer(s), support people for victims and offenders (family, friends, etc.), community members, and facilitator(s). The major difference between the family group conference and victim-offender mediation is that the family group conference involves more people from the offender's community and acknowledges that more people have been victimized, therefore involving more participants in the process. While expressing their emotions about the impact of the crime, participants may become involved in the process of reintegrating the offender and victim into the community.

The primary goal of the family group conference is to repair damages and minimize any harm caused by the behaviour of the offender, while maximizing the achievement of social justice for all of the above parties. The assumption is that the interest of the larger community will be served by providing a venue for the families of the victim and offender, and for other members of their community to attempt to repair the harm caused by the crime. The family group conference focuses on the offence rather than the offender, and provides the offender with an opportunity to accept responsibility for his/her actions. Reparation and restitution for victims are also goals of the family group conference.

The family group conference model relies on “reintegrative” rather than “stigmatizing” shame. Stigmatizing shame can humiliate and label the person as an offender, often provoking a reaction of anger and resentment. The offender may become alienated and seek revenge, which is often thought to be the case with the Western justice approach. Reintegrative shame focuses on the behaviour, rather than the person, and the encouragement of social reintegration of the offender. While helping the offender to shed his/her label as an offender, it can also help the victim to shed his/her label as a victim. Ultimately, the hope is that offenders will begin to understand how their actions have affected others, thereby reinforcing their conscience as well as their self-control.

Sentencing circles provide a forum for community members to make recommendations to a judge regarding sentencing in cases involving an offender from that community. A sentencing circle may be requested by the offender or recommended by a judge; or in the case of First Nations communities, their Community Justice Committee may request one. Those who participate in the inner circle of a sentencing circle may include victim(s) and offender(s), family/supporters of both victim and offender, judge, defense counsel, Crown prosecutor, court recorder, police officer(s), various service workers (youth, social, drug and addictions, probation officer), and respected Elders of the community. There may also be an outer circle consisting of some of the above, plus additional community members not directly involved in the incident. Sentencing circles may differ slightly from case to case, depending on the judge or community involved. Sentencing circles differ from family group conferences in that state officials are fully involved in the process. Sentence recommendations are made to the judge and are subject to appeal through the criminal justice system. The sentencing circle allows for an informality not available in the courtroom, and may provide more thorough information from which to determine an appropriate sentence.

For a sentencing circle to proceed, there must be a finding of guilt and all facts must be agreed; the accused must be a willing participant and meet the requirements of eligibility (i.e., be eligible for suspended sentence, intermittent sentence, or minimal term of imprisonment followed by probation -  not for prison terms of two years or more); the victim must be willing to participate; the community must consent to participate in the circle, as well as provide ongoing supervision and reintegration for the accused; and the case must be one in which the court is willing to allow a sentence outside the usual range.

The objectives of the sentencing circle are to make the offender aware of the impact of the offence on the victim(s) and the community, to allow the community to recommend sentencing options and engage in sharing some responsibility for decisions affecting sentencing, to focus on rehabilitation rather than punishment, and to deter further criminal behaviour. There is some similarity in the use of shame and involvement of the larger community in family group conferences and sentencing circles. The hope is that these models will provide a better justice for Aboriginal people.

Miriam Beverley Handel

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Further Reading

McDonald, J., D. Moore, T. O'Connell and M. Thorsborne. 1995. Real Justice Training Manual: Coordinating Family Group Conferences. Pipersville, PA: Piper's Press; Roberts, J.V. and C. LaPrairie. 1996. “Sentencing Circles: Some Unanswered Questions,” Criminal Law Quarterly 39: 69-83.