Aboriginal Self Government And The Canadian Justice

System Essay, Research Paper

Through the many inquires which have been made over the past decades in to

the Canadian justice system(Brizinski,1993,395) it has over and over again been stated that the present justice system has and is failing Aboriginal people. It is not suited for their cultural needs and does nothing to rehabilitate offenders but rather does the offender more harm then good. It does not address the underlying conditions causing criminal behavior or in assessing what specific needs must be addressed to rehabilitate.

The purpose of this paper is to examine why the justice system fails for First Nations persons and alternative rehabilitation methods used by Aboriginal people, comprised of Aboriginal people, for Aboriginal people, in hopes to rehabilitate offenders and prevent criminal behavior in the Aboriginal community from precontact to today. Through the attempts of Aboriginal people to take control of their own destiny’s in the ever going struggle to attain self-government I will examine the aims and structure of one of these alternative rehabilitation methods, the Sentencing Circle used today to address the need to return to community based “Restorative Justice Programs” in the Aboriginal community

It is the belief of first nations that the healing process and renewal of relationships are the essential ingredients for the building of healthy First Nations communities. First nations realize that the current justice process does not address the real issues at hand nor does it fit into their traditional forms of achieving justice. In fact, the current justice process systematically removes the offenders from their people and communities effectively severing all ties and relationships the individuals may have. In actuality, according to First Nations, no rehabilitation or correction of the individual occurs. In most cases, the individual returns home and assumes the same behavior which got the individual into the system in the first place. Thus, the cause of criminal or unacceptable behavior is not addressed nor is there a restoration of relationships. Since the 1970’s the numbers of over representation of aboriginals in the justice system has been shocking,”…Aboriginal people made up approximately 2% of the population of Canada, they made up 10% of the federal penitentiary population. When looked at regionally, the figures were even more distressing. For example, in the prairies, where Aboriginal people made up 5% of the population, they were 32% of the penitentiary population. In terms of incarceration in provincial facilities, the figures were even higher. For example, in Manitoba and Saskatchewan, where Aboriginal people made up between 6 and 7% of the population, they made up 46 and 60% of the provincial correctional centers admissions respectively.”(Hylton,1999,207)

“At the time of contact with Europeans, Native people had developed very sophisticated systems of government and social control.”(Rudin & Russel,1993,40)

Actions were treated as deserving of sanctions or punishment only if they threatened to disrupt the interrelatedness of the clan, tribe, or environment, because of the holistic approach to life favored by Aboriginal people it was not specific actions which brought about sanctions, but the consequences of actions which were the concerns of the society. Resolution of what might be viewed as criminal activities were usually arrived at privately between the parties themselves of their families. The justice system only engaged when repercussions of a person’s behavior required attention, not in response to any particular action.(Rudin & Russel,1993,41)

When a community response was required, Aboriginal people did not call upon specialized legal tribunals or specific individuals to act as judges. Rather, in keeping with the egalitarian nature of the community, all the members of the tribe would come together to discuss the case and to decide on the proper disposition of the affair. Since Aboriginal communities worked on the basis of consensus, unanimity was required before any sentence could be passed. When unanimity could not be achieve after discussions that might have lasted days, the matter was set aside for later deliberation. (Rudin & Russel,1993,41)

Guilt and innocence was not an issue for Aboriginal culture. The sanctions a person might face as a consequence of their actions were generally designed not to punish, but to prevent recurrence of community disruption. Forgiveness was an essential element. The purpose of punishment was to show the offender that they had disrupted the relationship of interconnectedness among members of the community. Because punishment served primarily as an educative function, resort was rarely made to physical punishment. Generally , the sanctions used to punish a person for inappropriateness were ridicule or ostracism. The severest penalty that could be imposed was banishment. Expulsion from the community unit. Such a penalty would be considered appropriate not because of the severity of the offence but rather because a person’s actions continuously interfered with the tribe’s functioning. Thus, banishment could be ordered if an individual persistency engaged in a series of minor offences, it was not the nature of the action which merited community attention, rather the consequences of the action.(Rudin & Russel,1993,41) What the foregoing had shown is that the emphasis in Aboriginal criminal justice system was not to determine the guilt or innocence of a person for the purpose of then administering a set penalty, but rather to ensure the continued smooth running of an interdependent, collective unit. Given the philosophical world view of Aboriginal people, the idea of depriving a person of their liberty in response to their having committed a particular act would have been strange and dysfunctional in it’s self.(Rudin & Russel,1993,41)

In contrast the Canadian justice system targets either the crime or criminal, rarely is there the information or inclination to explore the underlying causes of crime. In failing to appreciate the causes of crime, specifically the causes of the offenders conduct, the sentence may foster recidivism by worsening the very conditions generating the dysfunctional behavior, and may exacerbate conflicts within the community generally, and specifically between the victim and the offender. Little if any constructive change has occurred in the conditions or conflicts, or suffering within the communities as a consequence of jail sentences, fines, or probation orders indiscriminately hurled at offenders by the courts.(Stuart,1993,1)

The casual linkage between the offender’s criminal activity and their social, economic, emotional and domestic circumstances are, if examined at all, only superficially addressed and then principally assess what mitigating or aggravating influence the offender’s personal history might have in imposing punishment. In failing to examine the underlying conditions causing criminal behavior or in assessing what specific needs must be addressed to rehabilitate the offender, there can be but little wonder why the courts do a booming business in repeat customers.(Stuart,1993,13)

The aim of a sentencing circle is to shift the process of sentencing away from punishment to rehabilitation and responsibility. It provides a new alternative for courts to incarceration. Most importantly, the circle provides an opportunity to start a healing process for both the offender and the victim. The offender is presented with the impact of their actions in front of respected community members, elders, peers, family, the victim and their family, stimulating an opportunity for real change.

It’s main objectives are to enhance information and sentencing options, to provide a greater concern for impact of the crime on the victim, to shift the focus of the hearing from punishment to rehabilitation, and to involve the community in a meaningful way in sharing responsibility for sentencing.

Any person who has broken the law may request a sentencing circle. If the person pleads guilty or has been found guilty of a charge by a court, than an individual can ask the judge to refer him to a sentencing circle. The decision as to whether or not a sentencing circle will be granted is the judge’s alone. He or she will consider several factors in the decision as to whether or not to grant a sentencing circle. These factors are: 1)The accused must agree to be referred to a sentencing circle; 2)The accused must have deep roots in the community in which the circle is held and from which the participants are drawn; 3) That there are elders or respected non-political community leaders willing to participate; 4) The victim is willing to participate and has been subjected to no coercion or pressure in so agreeing; 5)Disputed facts have been resolved in advance; 6)The case is one which a court would be willing to take a calculated risk and depart from the usual range of sentencing. (Katapamisuak Society, 1993,3)

But according to Judge Grotsky, “… every offender will not qualify for a sentencing circle. And it is appropriate to hold a circle where the offender was not likely to receive a sentence of more than two years imprisonment and only where it would be appropriate to consider a suspended sentence, intermittent sentence, or minimal incarceration, plus incarceration, plus probation.(Star Phoenix March 5,199,A-1) Also the offender must display a certain attitude if he or she is to be considered for a circle. The individual must be genuinely contrite and be honestly interested in working with the community to change their life.

After a court has agreed that an offender is eligible fro a sentencing circle the date is then set and the next step is to organize the circle. This can be done by a probation officer, social worker, band worker, band counselor or an elder.

The setting of the circle is more informal than the normal court room setting; the circle may be held wherever there is space and agreement by participants such as a community hall, courtroom, band hall, a home, a teepee, outside, anywhere really. There is an inner and outer circle. The inner circle is composed of people directly involved in the discussions, and the outer circle is for those wishing to observe and speak only when asked or volunteer to do so. The circle always includes the judge, crown, defense, court recorder, community members and offender. It usually includes probation officers, court workers, youth workers, police, various community workers (including social workers) and / or alcohol and drug counselors, victim and family and/ or supporter, and offenders family and/or supporters.(La Prairie, 1996,) All parties involved can have some input as to what the offenders sentence should be, but the judge still has the final decision on the sentence.

The circle is usually opened by a prayer or a sacred sweetgrass ceremony. The judge then explains briefly the purpose of the circle and the protocol to be observed. Sometimes this is handled by “Keepers” of the circle, usually by an elder and another respected person from the community, who explains the protocol to be observed in the circle and who facilitates the operation of the circle. The prosecutor or police then give a brief account of the charge and how the incident happened. The judge may indicate the upper limit for this kind of offence in a conventional sentence hearing. People are invited to speak and all have an equal opportunity to speak if they wish. The discussion, covers a wide range of areas including the history of the offender, his/her family, damage done to the victim and the root cause for criminal behavior. Some suggest solutions while others suggest resources that should be used. Some offer to support the offender or the victim.(Stevens,1994,23) At the beginning of the circle, the judge usually sets out the range of sentence required by the Criminal Code for the offence. He may also give his opinion of what the sentence might be in similar circumstances or if they were to consider the matter without the assistance of a sentencing circle.. Sometimes the judge will indicate the highest sentence the accused would receive. The judge is not bound by the recommendations of the circle, but usually attempts to follow them. If the judge deviates from the circles recommendations he/she usually will advise why and will explain the nature of the sentence to the offender and the circle. (Donlevy,1994,45-46) There are any different sentencing recommendations. The main sentence that the community would like to achieve is the healing and rehabilitation of the offender’s physical, emotional, mental or spiritual imbalances as well as the healing of the damage(physical,emotional,mental, and spiritual) to the victim.

Judge Barry Stuart, widely accredited with implementing the first sentencing circle in Canada, advocates the sentencing circle as the alternative to incarceration.

“ The justice system expects offenders with fragile self images, overwhelmed by personal problems, lacking any significant personal support system, without financial or personal resources to function independently, to miracously gain control over their life. When they fail…the justice system too readily closes the door on further rehabilitation and opens the door to jail…jail has a much higher prospect of negative consequences.”(Stevens,1994,42)

Judge Stuart ,also has stated “…communities must turn to less adversarial alternatives, such as Aboriginal sentencing circle and mediation between victims and offenders, which are based on consensus, forgiveness and reconciliation…what we’ve done, as the justice system is we’ve come into your communities and said ‘Stand back, the experts are here. We’ve made you lazy, we’ve taken away conflicts as a builder of communities, we’ve taken away, your conflict resolution skills.’…as a result, more people are locked up victims are not healed, offenders go on to re-offend, and a frustrated public continue to call for tougher punishment…The formal criminal justice system should serve as a system of last resort when communities cannot resolve conflict.”(The First Perspective, December,1997,23)

An example where the Sentencing Circle has been effective in making a change was in the Yukon. Harold Gatensby, a 46 year old repeat offender, and former alcoholic was granted a Sentencing Circle. As a teenager, his alcoholism drove him to repeat jail terms for assault. By the time he was 15, he was sent to adult court and spent time in a jail in northern Alberta. When he was released, he had learned to forge cheques, hot wire cars and pick locks. It was only with the help of elders in healing circles that he began a spiritual journey to work out for himself the meaning of honesty, trust and respect for others. Gatensby now travels across North America with Judge Barry Stuart training communities to use sentencing circles. Gatensby states that ironically the early Yukon circles were more successful among repeat offenders that first time offenders.(The First Perspective, December,1997,23)

“However, there is a significant difference between Aboriginal justice projects operating within the current justice system and the same projects operating within an Aboriginal justice system. Currently, these projects exist at the outer edges of the system. Since they exist at the margins, they are always in danger of being scaled back or abandoned altogether as a result of shifts in the wind. In an Aboriginal justice system, these same projects would have pride of place; far from being at the

edges, they would be firmly front and center. In this position, they would not only have the opportunity to grow and thrive, but they would also be important building blocks for the development of distinct Aboriginal justice systems.”(Hylton,1999,225)

In conclusion, Aboriginal people have a very different concept of justice than what the non-Aboriginal justice system perceives. Aboriginal people believe that emphasis should be on restoring the situation to harmony rather than punishing the offender. This means understanding what has caused the problems and then taking measures to restore things to balance. It means understanding what were the consequences to victims and others in the community, and what can be done to rectify the whole situation. A regaining of balance and harmony in individuals and communities are the key factors in obtaining justice for Aboriginal people. We must work consistently and together to heal people and communities through the movements of community health and healing, balance, and harmony. This means taking the current justice system and allowing the people whom it has failed miserably to control their own destinies in all aspects, such as the maintaining of their own justice systems through the initiatives of Aboriginal Self Government in Canada.

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Saskatoon,Sk

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Katapamisuak Society, (1993) Katapamisuak society Protocol. Pound maker

Cree Nation, Saskatchewan

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