The truth about sentencing circles – Opinion / Full Comment – Pierre Rousseau: The truth about sentencing circles
Posted: February 02, 2009

After reading Jonathan Kay’s article about Christopher Pauchay’s criminal negligence on Saskatchewan’s Yellow Quill reserve (“The folly of native sentencing circles,” Jan. 20), I realized that there is confusion about sentencing circles and aboriginal justice.

I am a retired Crown prosecutor and spent many of my professional years working in aboriginal communities in northern Canada. I experienced first-hand the deficiencies of the criminal court system in those communities. There is a misconception about sentencing circles. This is not an aboriginal process, but rather a process that was designed by judges who were concerned they had very little information about the communities they were sitting in and the people they were dealing with.

A typical sentencing circle is composed of a judge, lawyers, the offender and, usually, the victim and members of the community that have an interest in the matter. The purpose is to provide information to the court about the offender, the victims and the community, and to make recommendations about community resources to assist the court where there are possibilities of rehabilitation for the offender. The judge still decides on the sentence and has full latitude to impose a lengthy jail term.

These circles, therefore, have no real impact on the suffering in the communities — they are only a consultation process used by the courts.

Sentencing circles were borrowed from the Plains’ Healing Circles, and are an attempt by the mainstream system to co-opt aboriginal traditions in support of the court system. Except that a circle in aboriginal cultures is seen as a healing process, while here in Canada it is part of a punitive system.

Restorative justice is a concept that has been adopted in many countries, including Canada, and is based on restoring the relationships between an offender and his or her victim through a healing process. This better reflects aboriginal cultures that are very different from those of the dominant society. For aboriginal cultures, conflicts within the community should be resolved through restoring harmony and relationships, since those involved have to live together and punishment has little meaning.

When I was a prosecutor in the north, I saw numerous small-crime offenders sent to jail. When they came back to their communities after a number of weeks or months away, they were far more dangerous than they had been before being sent to jail. The courts had not contributed a bit in resolving the problems that were at the root of the crime. Jail terms were increasing, but so was violence and pain in the community.

Conversely, I also saw communities getting more involved in justice matters through justice committees that were taking responsibility for some minor crimes. I can attest to the fact that this approach works most of the time, and the rates of re-offending are far lower than the rates of recidivism for offenders who go through the main-stream court system. A community-based aboriginal process has better chances of working in these communities than the mainstream system. And that’s why the Aboriginal Justice Strategy (AJS) is effective.

The AJS does not provide financial support to sentencing circles, but it provides funding to community-based programs that deal with criminal offences and other matters at the community level, some of which may assist the courts in holding sentencing circles.

Going back to Christopher Pauchay (pictured): His crimes are extremely serious and impacted his community in a way that is hard to imagine. Children are important in First Nations communities, and the Yellow Quill community was devastated by this awful crime. The court got involved because this is how the government has decided justice should be rendered in these communities. The community did not request for the courts to get involved. But now the court wants to consult the community through a sentencing circle.
Once the court is informed of the impact of this crime on the community, and the circumstance of the offender, the victims and their families, then the judge will have the responsibility to apply the law to sentence this individual. This is the judge’s responsibility.

Whatever the punishment handed to Christopher Pauchay, it will not be based on the decision of a sentencing circle.

- Pierre Rousseau lives in Sooke, B. C.

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