Sentencing Circles for Aboriginal Offenders in Canada: Furthering the Idea of Aboriginal Justice Within a Western Justice Framework
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SENTENCING CIRCLES FOR ABORIGINAL OFFENDERS IN CANADA: FURTHERING THE IDEA OF ABORIGINAL JUSTICE WITHIN A WESTERN JUSTICE FRAMEWORK by Melanie Spiteri A Thesis Submitted to the Faculty of Graduate Studies and Research through the Department of Sociology and Anthropology in Partial Fulfillment of the Requirements for the Degree of Master of Arts at the University of Windsor Windsor, Ontario, Canada 2001 © 2001 Melanie Spiteri APPROVED BY: Original signed by Dr. M. Kral Dr. M. Kral Department of Psychology Original signed by Dr. A. Hall Dr. A. Hall Department of Sociology Original signed by Dr. M. Hedley Dr. M. Hedley, Advisor Department of Sociology Original signed by Dr. R. Nakhaie Dr. R. Nakhaie, Chair Department of Sociology ABSTRACT This thesis examines the use of sentencing circles for Aboriginal offenders in Canada. The purpose of this thesis is to investigate the degree to which the idea of Aboriginal justice, and the concepts associated with this idea, have been furthered by the implementation of sentencing circles in Aboriginal communities across Canada. The amount of control that Aboriginal community members have over the sentencing circle process and sentencing itself will be an important factor in furthering the idea of Aboriginal justice within a Western justice framework. The main source of data for this case study includes seventeen reported sentencing circles judgments, seven sentencing circle applications, and three appeals of sentencing circle decisions all of which took place between 1990 and 1999. Existing research on sentencing circles and Aboriginal justice is also explored throughout this thesis. The findings suggest that community members, victims, and offenders have begun to act on the understanding that justice is a community responsibility by participating in sentencing circles. While circle participants can introduce Aboriginal traditions and practices into the circle process and can suggest restorative and healing sentencing plans, they do this within the constraints of the criminal justice system. The criminal justice system, through case law/appeals and legislation in the Canadian Criminal Code, places constraints upon the sentencing of offenders in sentencing circles. Judges are restricted as to the types of sentences that can be given to Aboriginal offenders in sentencing circles. While judges retain the power over sentencing they often accept the recommendations for sentence given by community members. The community members’ suggestions are often reflected in the conditions of probation. Many of the sentences given did further the idea of Aboriginal justice by ensuring iii that offenders follow a rehabilitative plan, with the help of their fellow community members. These plans include aspects of restoration (and counselling), reconciliation, restitution, and reimbursement. The conclusion is made that even though Aboriginal justice initiatives, such as sentencing circles, are operating within the Western justice framework, they do allow for the advancement of concepts associated with the idea of Aboriginal justice. iv ACKNOWLEDGMENTS I wish to acknowledge the financial assistance and funding provided by the Grand River Post Secondary Education Office which made my university career a possibility. A thank you is in order for all of my education counsellors over the years from GRPSEO. I also wish to thank my advisor Dr. Max Hedley for his assistance and advice throughout this process. I would like to thank my second reader Dr. Alan Hall and my outside reader Dr. Michael Kral for their feedback and assistance. I also want to acknowledge and thank my original second reader Dr. Stephen Baron and my original outside reader Dr. Victoria Paraschak. I particularly want to thank Liz Chamberlain for her contribution to this thesis. I would often seek Liz’s advice as the Education Counsellor at Turtle Island throughout my undergraduate and graduate studies. It was her suggestion that I should explore the use of sentencing circles for my Master’s thesis. I wish to thank the present Graduate Secretary for the Sociology Department, Andria Turner. Andria was always there when I needed her and she was always ready to help with my questions and requests. Before her, Sue McGilveary assisted me in the very same way. I also would like to thank Bonnie Orchard for sending me a copy of her thesis Sentencing Circles in Saskatchewan (1998) and for offering suggestions of where I could find more information on sentencing circles. I would like to thank Rick Fowler who works at the Native Law Centre of Canada library at the University of Saskatchewan. Rick was an enormous help by answering my many questions on sentencing circles. Lastly I would like to thank my family for their support and encouragement throughout my studies. Especially my mother for always believing in me and my husband for his patience and understanding. v TABLE OF CONTENTS ABSTRACT iii ACKNOWLEDGMENTS v CHAPTER I. INTRODUCTION 1 Notes 14 II. REVIEW OF THE LITERATURE 16 Notes 35 III. PROCEDURE 36 Significance of the Study 36 Design of the Study 36 Data Collection Procedures 38 Ethics 39 Delimitations and Limitations of This Study 40 Research Questions 42 IV. ROLE OF THE OFFENDERS, THE VICTIMS, AND THE COMMUNITY MEMBERS 44 The Offender 45 The Victim 49 Members of the Community 54 V. ROLE OF THE JUDGES AND LAWYERS 64 The Judge 64 The Lawyers 67 VI. THE CIRCLE PROCESS 71 Request for a Circle and Eligibility Criteria 71 Arrangement of the Circle 77 Steps Involved 79 Aboriginal Cultural/Traditional Practices and the Circle Process 83 The Importance of the Community Members’ Involvement in the Circle 87 Notes 91 vi VII. SENTENCING 92 Constraints of the Criminal Justice System: Purpose, Objectives and Principles of Sentencing 94 Subsections 781.2 (d) and (e): Jail/Punishment Vs Rehabilitation 96 Deterrence 101 Leniency/Harshness of Sentence 104 Constraints of the Criminal Justice System Upon the Imposition of Sentence 106 Starting Point Sentences, Mandatory Minimums, and Appeals Courts 106 Sentencing Parity 108 Establishing Sentencing Ranges 112 Constraints of the Criminal Justice System Upon the Sentences Given 117 Suspended Sentences 117 Curative/Conditional Discharge 118 Section 742.1 of the Criminal Code: Conditional Sentence Orders 119 Sentence Adjournments 120 Community Members’ Input for Sentencing and Aboriginal Concepts of Healing 123 Notes 133 VIII. CONCLUSION 134 Findings 134 The Need for Reforms 141 Problems of Implementing Reforms 145 Next Steps and Further Research 148 APPENDIX 1: Charge, Sentence, and Jurisdiction 150 APPENDIX 2: Offenders' Offence, Sex, and Age 151 APPENDIX 3: Steps Involved in Case #6 152 APPENDIX 4: Steps Involved in Case #13 153 APPENDIX 5: Purpose, Objectives and Principles of Sentencing 156 APPENDIX 6: Objectives of Sentencing Considered by the Judges 157 APPENDIX 7: Previous Convictions and Sentences of the Offenders 158 APPENDIX 8: Rehabilitative Steps Taken By The Offenders Prior to Sentencing 160 vii APPENDIX 9: Probation Conditions for the Offenders 162 APPENDIX 10: Judge’s Consideration of Principles and Objectives of Sentencing in Case #16 166 APPENDIX 11: Range of Sentence Outlined by the Judges 168 APPENDIX 12: Crown Submissions For Sentence 169 APPENDIX 13: Defence Submission for Sentence 170 APPENDIX 14: Community Members' Suggestions for Sentence 171 REFERENCES 175 VITA AUCTORIS 180 viii CHAPTER I INTRODUCTION For years now there have been reports on the high rates of incarcerated Aboriginal offenders1 in Canada. According to the National Parole Board report of 1999, statistically, “Aboriginal2 Canadians represent only about 3% of the general population but 16% of the federally incarcerated population” (http://www.npb-cnlc.gc.ca/ppe.htm). The percentage of incarcerated Aboriginal offenders in the provinces is much higher, especially in the Western provinces. It is unclear whether this overrepresentation merely reflects the high number of crimes committed by Aboriginal people or if it reflects an institutional form of discrimination that pervades the criminal justice system. Reforms to the criminal justice system3 are needed that will lower the high rate of incarceration for Aboriginal men and women. Other than the sentencing process itself, Quigley (1994) summarized the following causes that contribute to the over-incarceration of Aboriginal people: socioeconomic situation, high proportion of young people in the “age group prone to criminality”, susceptibility to alcohol abuse, policing (detection rates), cultural barriers in court, and prior criminal records (273). These are only some of the reasons why Aboriginal people most often come into contact with the law. Once Aboriginal people enter the system, there are even more barriers that they have to face. Sinclair (1994) found that once arrested and charged Aboriginal people are less likely than non-Aboriginal people to plea bargain or to benefit from a negotiated plea; Aboriginal people are often unrepresented or under-represented in court. They are largely economically impoverished and cannot afford to hire their own counsel....Aboriginal people are more likely than non-Aboriginal people to plead guilty, even when they are not, or do not believe themselves to be guilty; Aboriginal people are more likely than non-Aboriginal people to be incarcerated upon conviction (but compared with non-Aboriginal people, they are likely to receive, on average, 1 shorter sentences); Aboriginal people are more likely than non-Aboriginal people to leave the legal process