The views expressed in this report are those of the... necessarily those of the Ministry of the Solicitor General of...

The views expressed in this report are those of the... necessarily those of the Ministry of the Solicitor General of...
The views expressed in this report are those of the authors and are not
necessarily those of the Ministry of the Solicitor General of Canada.
DEVELOPING &
EVALUATING
JUSTICE PROJECTS IN
ABORIGINAL
COMMUNITIES:
A Review Of The
Literature
APC 16 CA (1998)
Aboriginal Peoples Collection
Single copies of this manual may be obtained
by writing to:
Aboriginal Corrections Policy Unit
Solicitor General Canada
340 Laurier Avenue West
Ottawa, Ontario
K1A 0P8
If more than one copy is requierd, please
feel free to photocopy any or all parts of
this manual.
This manual is also available on the
Internet at www.sgc.gc.ca
Cat No.:
JS5-1/16-1998E
ISBN No.: 0-662-26652-8
DEVELOPING & EVALUATING
JUSTICE PROJECTS
IN ABORIGINAL COMMUNITIES:
A REVIEW OF THE LITERATURE
Don Clairmont
Dalhousie University
and
Rick Linden
University of Manitoba
1998
Making It Work: Planning and Evaluating Community Corrections and
Healing Projects in Aboriginal Communities and Developing and
Evaluating Justice/Community Corrections Projects: A Review of the
Literature were originally planned as one volume. In looking at the
authors' work, the Aboriginal Corrections Policy Unit decided that the
two pieces were sufficiently different that their differences should be
reflected in their publishing. The former is published as part of the
Aboriginal Peoples Collection Technical Series, a group of publications
meant to offer practical, on-the-ground advice to First Nations
communities, both urban and reserve. The latter publication is part of the
Aboriginal Peoples Collection, a series with a history of getting
information on the general theme of Aboriginal corrections out to all who
may be interested in it. It is the hope of the Aboriginal Corrections Policy
Unit that both of these volumes will prove useful not only to their intended
audiences but to all who take an interest in the issues concerning the First
Peoples of North America.
Aboriginal Corrections Policy Unit
Solicitor General Canada
March 1998
TABLE OF CONTENTS
Introduction.........................................................................................................................iv
The Context For Aboriginal Justice Initiatives: A Perspective From the Literature ................. 3
Part A: Contextual And Academic Bibliography.................................................................... 9
Part B: Evaluations, Manuals And Programs ...................................................................... 46
Part C: Other Materials..................................................................................................... 68
Themes From The Literature.............................................................................................. 72
i
ii
INTRODUCTION
This working bibliography assembles written materials – books, monographs, reports, articles,
and papers – that are of value for policy makers, practitioners, academics, and citizens who are
concerned with justice issues and projects in Canada's Aboriginal communities. The field of
justice is defined in the broad sense to include laws, justice practices and processes, policing,
and corrections. The objective has been to provide readers, where possible, with a short
description of each work, emphasizing its key themes and the issues dealt with. For readers'
convenience, the review of literature is divided into two parts: Part A, Contextual and Academic
Bibliography, and Part B, Evaluations, Manuals and Programs. Additional sections provide a
short background or context for locating or placing Aboriginal justice initiatives and, from the
author's perspective, a short compilation of chief "lessons learned" from the previous justice
initiatives.
There has been a proliferation of Aboriginal justice initiatives in recent years, and all signs
indicate that there is much more to come. The main push factor has been a wide-spread view,
common among both Aboriginal people, and officials and key players in the justice system, that
the conventional criminal justice system has not worked well for Aboriginal peoples. The main
pull factor has been the congruence of Aboriginal wishes and governmental policy concerning
the desirability of greater Aboriginal self-government and autonomy. There is widespread
enthusiasm about the prospect of Aboriginal justice moving beyond the state or condition where
the legacy has been over-representation (as regards victims, offenders, and inmates), minimal
Aboriginal participation in the determination of justice, and general Aboriginal estrangement. A
future state is envisaged where Aboriginal justice furthers other Aboriginal collective objectives,
incorporates appropriate traditions and experiences, manifests Aboriginal control, and deals
effectively with the harm that crime and social disorder have wrought for all parties (i.e. the
victim, the offender, and the community). If this transition is to be successful, resources,
Aboriginal and non-Aboriginal co-operation, and well-developed, implemented, and evaluated
justice projects will be required. Thus far, there has been little quality assessment of the projects
that have been implemented; accordingly, there is much uncertainty about the extent of projects'
implementation, the nature and efficacy of the programs and treatments called for, and the
impacts on the various parties. It is hoped that this working bibliography can assist in improving
that situation.
iii
THE CONTEXT FOR ABORIGINAL JUSTICE INITIATIVES:
A PERSPECTIVE FROM THE LITERATURE
Aboriginal wishes and governmental policy are in apparent unison concerning the desirability of
greater Aboriginal self-government. As the latter development evolves, entailed changes
regarding the direction of policies and programs, resource allocation, and administrative
structures and procedures, require that mechanisms be put in place so that Aboriginal leaders
and others can assess whether change is proceeding in an efficient, effective, and equitable
manner. This may be particularly required in a 'small community' situation, given the realities of
small scattered populations with limited resources and increasing internal differentiation, the
dangers of cliques exercising excessive control, and of dependence upon informal processes
alone. In addition to issues of self-control and autonomy, there is also the question of the extent
to which Aboriginal systems will be different in principle, reflecting different values, priorities,
and world views. It is not surprising then that in all institutional sectors attention is increasingly
being paid to mission statements, objectives, performance indicators, outcomes, monitoring, and
evaluation feedback.
The justice system has considerable importance in discussions of Aboriginal self-government
and outside self-government negotiations as well. There is a widespread view, among both
governmental officials (especially in the justice system) and Aboriginal leaders, that the field of
justice is a centre-piece, if not the leading edge, in the development of greater Aboriginal selfgovernment and autonomy. A common position appears to be that significant changes can and
should be readily made with regard to how justice is organized and delivered in Aboriginal
communities. Moreover, there seems to be considerable agreement that the conventional justice
system has failed Aboriginal people, and that alternative and innovative practices, rooted in
Aboriginal traditions and experience, should be encouraged. Accordingly, there is widespread
enthusiasm about the prospect of Aboriginal justice moving beyond the present state with its
legacy of over-representation (as regards offenders and victims), minimal Aboriginal
participation in the determination of justice, and general estrangement. A future is envisaged
where Aboriginal justice furthers other Aboriginal collective objectives, incorporates traditions
and experiences, manifests Aboriginal control, and deals effectively with the harm that crime and
social disorder have wrought for all parties (i.e. victim, offender, community).
From the point of view of styles of governmental approach to "aboriginal people and the
criminal justice system", there have been three major policy era (McNamara, 1995), namely:
a)
pre-1975: Little attention was paid in any official or programmatic way to the
distinctive problems, needs, and participation of Aboriginal people in the criminal justice
system
b)
1975 to 1990: Following the 1975 National Conference on Native People sponsored
by the Solicitor General Canada and Justice Canada, an agenda was set forth calling for
the provision of better access to all facets of the justice system, more equitable
treatment, greater Aboriginal control over service delivery, recruitment of Aboriginal
personnel, cross-cultural sensitivity training for non-natives, and more emphasis on
alternatives to incarceration and crime prevention. Between 1975 and 1990 more than
twenty government reports reiterated these types of recommendations.
3
c)
1991 to the present: In 1991 two major reports set the stage for the development of a
new agenda, one emphasizing the establishment of Aboriginal justice systems where
Aboriginal peoples would presumably exercise control over the administration of their
governing justice systems and also over how justice would be defined in those systems.
These two reports were the Law Reform Commission's 1991 report, Aboriginal
Peoples and Criminal Justice, and the 1991 report of the Aboriginal Justice Inquiry of
Manitoba. During this period the federal government re-organized its administrative
structures and delivery systems for Aboriginal justice. Responsibilities for First Nations
policing were transferred from Indian Affairs to Solicitor General Canada. In the
Solicitor General Canada the Aboriginal Corrections Policy Unit was formed, and in
Justice Canada the Aboriginal Justice Directorate came into being. Both were launched
as part of the Aboriginal Justice Initiative. The mandates of these groups were to
advance Aboriginal justice interests, improve the response of the conventional justice
system and facilitate greater Aboriginal direction of, and innovation in, justice in
Aboriginal communities. The 1996 final report of the Royal Commission on Aboriginal
Peoples emphasized the need to develop further the new agenda of autonomy and legal
pluralism.
A major thrust of the Solicitor General Canada's Aboriginal policing policy has been the
development of tripartite agreements (federal and provincial governments and Aboriginal
communities). Since 1991 the number of such agreements has increased more than fifty-fold and
they now cover about two-thirds of the targeted population. A recent study (Murphy and
Clairmont, 1996) has indicated that the large majority of front-line officers in Aboriginal
communities across Canada are themselves Aboriginal, and that the fastest growing type of
police organization is the self-administered, First Nations police service. The latter is popularly
called 'stand alone policing'. None of these police services is fully autonomous and all have
established protocols with the R.C.M.P. and/or provincial police organizations; nevertheless the
trend towards increased autonomy is unmistakable.
Under the sponsorship of the Solicitor General Canada, important developments have also been
occurring in the area of Aboriginal corrections. New Aboriginal-based penitentiaries have been
constructed for female and male inmates in western Canada, supplementing extant policies and
programs of penitentiary liaison, and Aboriginal counselling and spirituality. The Department of
the Solicitor General of Canada also participated in the 1992 Aboriginal Justice Initiative and
the 1996 Aboriginal Justice Strategy. The Department established an Aboriginal Corrections
Policy Unit in 1992 to support, through research and development, communities to increase
their knowledge of correctional issues and to assume greater responsibility for corrections.
More recently, the Unit has been mandated to explore offender treatment in selected Aboriginal
communities returning to a restorative, healing approach in dealing with criminal activity. The
Unit has an extensive communications program and is involved in negotiating the corrections
provisions of the federal self-government policy.
The Correctional Service of Canada has also expanded its activities for Aboriginal offenders.
The Service has introduced new Aboriginal-specific programs, such as Aboriginal substance
abuse programs, to augment their existing core Aboriginal programs that included cultural,
4
elders and spiritual programming and inmate liaison worker programs. Two new penitentiaries
have been constructed for female and male inmates in western Canada. Both institutions were
developed in partnership with Aboriginal people and reflect a healing approach to institutional
corrections. The National Parole Board has introduced elder-assisted parole hearings in the
Pacific and Prairie regions.
Since the early 1970s Justice Canada has had two regularly funded programs relating
specifically to Aboriginal people, namely a Native Legal Studies Program, particularly for Metis
and non-status Indians, and the Native Court Worker Program. The latter is a federalprovincial, cost-shared program which has been slightly modified over the years (e.g. to include
applicability to young offenders) and which has been the subject of considerable policy
deliberation over the past decade. The discussions have largely centred around expanding the
authorized areas for funding (i.e. expanding the role of the court worker to include other justice
activities such as public legal education, and general justice work in the community).
In 1992 the Federal Government established the Aboriginal Justice Initiative in the departments
of Justice and Solicitor General. For its part, Justice Canada formed the Aboriginal Justice
Directorate whose role was to examine community-based strategies through the funding of
Aboriginal justice initiatives on a pilot project basis. Renewed in 1996 as the Aboriginal Justice
Strategy, Justice Canada expanded its role to support the creation of long-term, viable justice
programs and institutions that are cost-shared with provinces and territories. Particular emphasis
is placed on those communities that are engaged in negotiating, or are working towards, sectoral
agreements for justice under the inherent right of self-government.
A new element of Justice’s strategy is the Aboriginal Justice Learning Network, an initiative
designed to mobilize key players in the justice system (i.e. judges, police, crown attorneys and
correctional workers) and Aboriginal people to work towards common objectives. A major
emphasis of the Network is to support Aboriginal communities to explore culturally appropriate
justice processes, such as circle sentencing and healing circles, and incorporate new Aboriginalbased approaches that appear to work in other countries (i.e. family group conferencing).
There are some special circumstances that are especially relevant to the development of
Aboriginal policing, corrections, and justice initiatives, and especially to restorative justice
initiatives. As Turpel (1993) has observed, Aboriginal communities have seen their societies and
cultures destroyed in large measure by European colonization, but there remains, certainly
among some Aboriginal peoples in the highly diversified Canadian Aboriginal community, both a
difference in world view vis-à-vis the larger Canadian society, and a desire to implement a
different kind of justice system. It is also important to appreciate the pattern of crime and social
disorder that characterize many Aboriginal communities, namely a pattern emphasizing personal
assault and public disorder (LaPrairie. 1994; 1996). These latter offences appear to reflect, at
times, a community breakdown, and certainly suggest the need for justice initiatives that
reconcile people and facilitate community development. At the same time Aboriginal community
justice has to contend with the common pattern of a small group of recidivists (usually young
adult males), and the less common pattern of extensive female crime, both of which present
challenging rehabilitative problems.
5
The literature indicates that the small size of many Aboriginal communities raises issues of
adequate resources to sustain justice initiatives (e.g. avoiding burn-out among staff and
volunteers), and of bias in enforcing social disorder. At the same time these small communities,
as Depew (1996) has observed, have an ability to "reproduce themselves as a community of
relatives and friends", to reproduce communitarianism which can be an effective underpinning
for restorative justice programming. With increasing education, and the development of regional
networks (linking small communities in a tribal or multi-tribal system), the strengths of small
communities may be harnessed to effectively serve justice objectives. The lack of resources for
many communities also can create what LaPrairie (1994) has termed "funding dependency",
where available funding rather than community needs and preferences shape Aboriginal justice
initiatives. Clearly there is a challenge for Aboriginal peoples to forcefully advocate their own
solutions, and a challenge for governments to respect Aboriginal differences.
There are several recurring themes in the literature concerning Aboriginal justice initiatives. As
noted above, many Aboriginal and non-Aboriginal leaders consider Aboriginal justice as the
leading edge in the movement towards Aboriginal self-government. These initiatives may have
considerable symbolic significance for successful Aboriginal stewardship of Aboriginal life, as
well as for their inherent rehabilitative and healing potential. The literature shows that there are
no profound legal or constitutional obstacles to the creation of quite different Aboriginal justice
programs and practices (e.g. Hunt, 1991; Macklem, 1992; Royal Commission on Aboriginal
Peoples, 1996). Many commentators have emphasized that for a variety of reasons, some
intrinsic such as the strategies for healing, and some extrinsic such as the band organization
imposed by the Indian Act, Aboriginal justice initiatives have to be community-based. In light of
the social disorder circumstances noted above, justice initiatives are seen as both requiring, and
impacting upon, community development (LaPrairie, 1996; Stuart, 1997). Commentators such
as McDonnell, 1995; Fitzpatrick, 1992; and Monture, 1995), referring to the significant internal
differentiation that exists and the competing alternative justice strategies, have stressed the need
for widespread "community conversations", involving all sectors of the community. Another
important theme has been that Aboriginal communities may well be at the forefront of the
increasingly popular restorative justice movement, because the failure of the conventional justice
system has been so evident in relation to Aboriginal peoples, because Aboriginal emphases on
healing and holistic approaches are so compatible with restorative justice principles, and
because both Aboriginal and restorative perspectives emphasize rebuilding communities. At the
same time, as Jackson (1992) and others have observed, Aboriginal justice thinking appears
often to differ from restorative justice in the larger society in that in the Aboriginal instances there
is more emphasis on collective responsibility, greater community involvement and more explicit
spirituality.
Overall then, it can be argued from the literature that the main push factor for the proliferation of
Aboriginal justice initiatives has been the consensus, among Aboriginal peoples and justice
officials, that the conventional justice system has not worked well for Aboriginal people. The
main pull factor has been the congruence of Aboriginal aspirations and governmental policy with
respect to greater autonomy and self-government for Aboriginal peoples. There is scant, quality
material available on the extent to which Aboriginal justice initiatives are any more effective,
6
efficient, and equitable than the justice provided by the mainstream system. There is little
information on the actual implementation of programs, on the treatments called for, or on the
intermediate or long-tern impact for victims, offenders, and communities. Insofar as Aboriginal
justice initiatives reflect well the ideas and methods of restorative justice, there would be reason
for scepticism. The diversion, mediation, and other restorative justice programs, extensively
implemented in North America in the 1960s and 1970s proved to be relatively ineffective and
inefficient (Feeley, 1983; Nuffield, 1997). Still, the restorative justice movement has been
resurrected throughout North America (Braithwaite, 1996), testimony both to the flaws of the
conventional justice system, and to the potential of restorative justice. And Aboriginal
communities with their traditions, socio-demographics, and potential for communitarianism might
well lead the way. If that is to happen then well-developed and well-implemented programs and
quality evaluations will be required.
That Aboriginal people are taking steps toward greater involvement and control over justice and
corrections in their societies is an important part of their rebuilding as nations. The nations that
inhabited this continent before contact had their own systems of justice though they were
seldom, if ever, separated from the daily workings of their everyday lives. As we approach the
millennium it is fair to say that it would be virtually impossible to totally recreate such systems,
but that does not mean that First Nations must buy into the justice system of Canadian society
with its adversarial approach and long periods of unproductive detention. Aboriginal people are
searching for, and some have found, a justice that suite them in today’s world. Understanding
these approaches will not only help them to refine and improve but it will allow Canadian society
to learn more about justice systems which may very well suit better than the one which currently
serves its citizens.
7
PART A
CONTEXTUAL AND ACADEMIC BIBLIOGRAPHY
9
Aboriginal Corrections Policy Unit (eds.). The Four Circles of Hollow Water. Ottawa:
Supply and Services, 1997
This is an exceptional document which places in perspective, from a variety of standpoints, the
well-known Hollow Water Healing Circle (see Lajeunesse below). The four circles are the
Ojibwa Circle, the Hollow Water Circle, the Victim Circle and the Offender Circle. The Ojibwa
Circle is discussed in relation to a variety of themes, including sexual norms and dealing with
deviance, in pre- and post-colonization Ojibwa culture and society. The Offender Circle
succinctly summarizes the latest professional knowledge about treating sexual abuse offenders,
from a non-Aboriginal perspective. At the same time the authors show how the cognitivebehavioural treatment orientations which have yielded some success are generally quite
consistent with the theory and practice underlying the Hollow Water approach. Some
differences are noted, especially the greater emphasis in the latter on holistic treatment involving
victims, offenders, and the community at large, an emphasis explained in terms of Ojibwa culture
and the imperatives of living in small, somewhat isolated communities. The Victim circle explains
the pain and processes of victimization, often in the words of the victims, and also convincingly
argues for a different type of healing strategy as being required in communities such as Hollow
Water, specifically the strategy evidenced in the community holistic circle healing. The Hollow
Water Circle is discussed in terms of personal histories and descriptions provided by two major
participants in that program. They present interesting details on the development of the program
since 1983, describe the processes, and comment on the challenges facing this successful
indigenous initiative which has revitalized the community, empowered it, and enabled it to deal
with a major social problem.
Auger, Donald et al. Crime and Control in Three Nishnawbe-Aski Communities.
Thunder Bay Ontario: Nishnawbe-Aski Legal Services Corporation, 1991
This report examines crime and its control in three Nishnawbe-Aski reserves in North-Western
Ontario. The methods used included interviews with community members and gathering data
from police and court files. The authors compare, by community, perceptions of the frequency
and seriousness of different criminal problems, their actual occurrence, the level of charges laid,
and the extent to which internal, informal community controls are perceived to exist and are
effective supplements or alternatives to the criminal justice system. They conclude that each
community is quite different in how it perceives and relates to the criminal justice system but
that, overall, residents want both to strengthen community involvement and community controls
and, as well, to have the mainstream criminal justice (albeit an improved version) deal with
certain criminal problems.
Barnett, Cunliffe. “Circle Sentencing / Alternative Sentencing”, a paper presented at
Canadian Criminal Bar meeting, Queen Charlotte City, February 19, 1995
Bonta, James. Offender Rehabilitation. Ottawa: Solicitor General Canada, 1997
This brief report emphasizes that offender rehabilitation can be effectively achieved where the
appropriate treatment principles are implemented. The author contends that what is needed is a
11
cognitive-behavioural approach that takes into account the risk of re-offending and targets
needs which are both individual and societal (e.g. group cohesion, self-esteem, community
improvement). Client-specific planning, whereby a plan is developed for an offending individual
and presented to the court as an alternative to incarceration, can be an effective strategy. While
not focused on Aboriginal society the report can easily be related to, and is consistent with,
current developments such as treatment programs by Hollow Water First Nation and the Native
Clan Organization in Winnipeg.
Braithwaite, John and S. Mugford. "Conditions of Successful Reintegration
Ceremonies", British Journal of Criminology, 34 (2), 1994
This paper advances the idea that reintegrative shaming is no small challenge, but that it is
possible to effect, and thereby accomplish reduced recidivism, offender reintegration and victim
satisfaction. After discussing the family or community conferencing initiatives in Australia and
New Zealand, the authors outline fourteen conditions for successful reintegration ceremonies in
practice, developing these ideas vis-à-vis the earlier theoretical work of Garfinkle on conditions
of successful degradation ceremonies. Several key points here include the significance of getting
the victim to participate, the importance of the presence of supporters for both victim and
offender, the pivotal importance of the facilitator role in drawing out all parties and maintaining
support for all persons, designing a plan of action. and monitoring reintegration agreements.
They emphasize story-based training methods that focus on a few core principles namely
empower the victim, respect and support the offender while condemning his act, engage the
offender's supporters, and focus on the problem and the community not the offender and his
pathologies.
Braithwaite, John. “Restorative Justice And A Better Future”. Halifax: Dorothy J.
Killam Memorial Lecture, Dalhousie University, 1996
In this talk Braithwaite contends that the criminal justice system has been a large failure, with
class bias, ineffectiveness and an over-reliance on imprisonment. Of course his chief argument
for this failure is its basis in stigmatization rather than reintegrative shaming as a guiding principle.
He advances the model of restorative justice and discusses it in relation to victims, offenders, the
community, and control by citizens rather than professionals. He acknowledges that restorative
justice is micro-level (i.e. inter-personal relationships) but contends that at least it should take
into account underlying injustices that represent the macro or societal level. In his view there is a
universality of restorative traditions and these traditions now constitute a more valuable resource
than the equally universal retributive traditions. Since cultures shape their restorative values and
traditions differently there will be diverse social movements. Braithwaite outlines a path for
culturally diversified justice based on restorative principles and practices in schools, churches,
and indigenous peoples' communities, and the transformation of state criminal justice in urban
neighbourhoods through developments such as family conferencing. He cautions against a
romantic notion of simply going from state justice to local justice which might result in even
greater abuse of power. He is optimistic about blending the benefits of 'the statist revolution' (i.e.
the development of the modern state and its justice systems) and the discovery of 'communitybased justice'.
12
Canada, Royal Commission on Aboriginal Peoples, National Roundtable on Aboriginal
Justice Issues. Ottawa: Supply and Services Canada, 1993
This roundtable discussion brought together leading Aboriginal political representatives and
scholars, governmental leaders, academics and others to frame the justice issues for the Royal
Commission. There was extensive consensus on seven points, namely that the Canadian Justice
System so far has failed Aboriginal people; that the system has been too removed from
Aboriginal people and Aboriginal communities; that there is an emerging Aboriginal system
being formulated that is generating different and potentially effective principles for action; that the
time for action is now; that there is no fundamental constitutional impediment to change; that
local communities should be the bases for change; and that a merging of Aboriginal and
mainstream justice system thrusts is very possible.
Canada, Royal Commission on Aboriginal Peoples, Bridging The Cultural Divide: A
Report on Aboriginal People and Criminal Justice in Canada. Ottawa: Public Works
and Government Services Canada, 1996
This is the report of the Royal Commission that focuses on Aboriginal justice issues. It is
consistent with the roundtable consensus and sets out a new national agenda for Aboriginal
justice, one where improvements are sought in the conventional justice system but also where
the prospects for legal pluralism are explored (i.e. where Aboriginal systems of justice are given
rein to develop). It is an important contextual document for Aboriginal justice initiatives of the
future.
Cawsey, R.A. Justice on Trial: Task Force on the Criminal Justice System and Its
Impact on the Indian and Metis People of Alberta. Edmonton: Province of Alberta,
1991
The Cawsey task force issued three volumes, the main volume noted here, a summary volume,
and a third one which contains working papers and bibliography. The task force received many
submissions, made site visits, and collected relevant data. Its sections on policing, courts,
corrections, and so forth are well developed with solid supporting evidence. This report shows
that the Canadian-wide over-representation of Aboriginal peoples in the justice system, as
offenders and incarcerates, applies in Alberta. The task force concludes that systemic
discrimination exists within the criminal justice system, even when uniform policies are being
applied. It advances some 340 recommendations, a third of which pertain to policing. One of
the principal recommendations is the re-establishment of community control (as opposed to
professional, bureaucratic control) in the criminal justice system. While sympathetic to the
possibilities of an Aboriginal alternative to the conventional justice system, it focuses upon
improving the present system and strengthening local community controls, explicitly leaving the
issue of how autonomous Aboriginal justice might be to negotiations between Aboriginal leaders
and the governments. Recommendations are advanced dealing for example with diversion,
sentencing panels, Aboriginal justices of the peace, and the location of provincial criminal courts.
Interesting presentations were provided the task force by various Aboriginal groups (e.g. the
13
Blood Tribe analyzed over-representation from the perspective of colonization and also
discussed its traditional concepts of justice).
Clairmont, Don. Native Justice Issues in Nova Scotia, 3 volumes. Halifax: Queen's
Printer, 1992
These volumes report on extensive research carried out in 1991 and 1992 for the Tripartite
Forum on Native Justice in Nova Scotia. The objective was a benchmark needs assessment of
justice for the Mi'kmaq people. The volumes are based on surveys of the on and off reserve
adult population, focus group discussions, in-depth interviews with offenders, Aboriginal
political and organizational leaders, and with Justice officials (police, prosecutors, judges, legal
aid and correctional personnel), and analyses of crime and other justice data. The sociodemographics of the Mi'kmaq are detailed and there are analyses of community problems and
crime trends. The main sections deal with policing and court-related concerns, detailing
preferences, problems and conflicts. Recommendations are advanced with respect to possible
initiatives in these two particular justice areas.
Clairmont, Don. "Alternative Justice Issues For Aboriginal Justice" in Journal of
Legal Pluralism and Unofficial Law, #36, 1996
This paper discusses the circumstances behind the development of, and the central issues in,
recent Aboriginal justice alternatives. It then examines one particular kind of justice alternative,
namely adult Aboriginal diversion projects, in four areas of Canada: metropolitan Toronto,
Sandy Lake and Attawapiskat in Northern Ontario, and Indian Brook in Nova Scotia. The
projects are compared in terms of social context, objectives, protocols, operations, and impact
for divertees, victims, and the community. Analytical considerations of equity, effectiveness, and
efficiency are considered for each project as well as issues of the extent to which the projects
have manifested Aboriginal cultural themes, advanced the self-government agenda, and effected
new practices or lessons for restorative justice. The results to date were seen as positive but
quite modest in these regards.
Crawford, Adam. "The Spirit of Community: Rights, Responsibilities and the
Communitarian Agenda", Journal of Law and Society 23(2), 1996
This paper is an insightful review of Etzioni's celebrated book, The Spirit of Community (see
below). Its chief point is succinctly stated by the author: "rebuilding communities is not now, nor
ever has been, always synonymous with the creation of social order, moral superiority, and
cohesion. An assertion of community identity at a local level can be beautifully conciliatory and
socially constructive but it can also be parochial, intolerant, and punitive". Crawford points out
some of the dangers of community and communitarianism such as having to contend with
differential power relations, coercion within communities, and other constraints, moral and
otherwise.
Daly K. “Diversionary Conferences in Australia”, paper presented at the American
Society of Criminology Annual Meeting, November 20-23, 1996
14
Daly refers to the large literature on informal justice and the lively theoretical debates that have
emerged. She traces the origins of the family group conferencing models in New Zealand and
Australia. The major critiques are identified including the critique of family conferencing
advanced as an indigenous invention, being a kind of misappropriation of Aboriginal culture or
neo-colonial control of same. She discusses these critiques in the light of her observations of a
number of conferencing cases. Reporting on conferencing cases she observed that the majority
of conference participants were offenders and their supporters, a fact which might explain why
victims were the least satisfied! She thought that community building can emerge from
conferencing, and that conferencing did more good than harm. In an appended table she lays
out how the three different models of conferencing in that region differ by initial theory or aim,
pipeline, police role in conferencing, political authority, and offences handled.
Depew, Robert. "Popular Justice and Aboriginal Communities", Journal of Legal
Pluralism and Unofficial Law, 36, 1996
Depew places Aboriginal popular justice initiatives in the larger context of community
development and crime prevention, both theoretically and globally. In discussing popular justice
as a general phenomenon, he emphasizes its assumption of communitarianism (i.e. a strong
consensus, cultural homogeneity), its strategic direction of reaching a non-coercive, consensual
resolution to disputes and conflicts, and the variety of informal and flexible techniques employed.
He raises a number of critical issues concerning popular justice. He highlights, for example, "the
rush to embrace 'nostalgic' models which nowadays are usually initiated by the state and could
be a form of "net-widening", enhancing governmental control, but doing little to effect desirable
change with respect to how social relations are structured. He also argues that often popular
justice programs take on the characteristics of professionalism, hierarchy, and bureaucracy, and
exclude public participation. They become rather similar to the structures to which they are
presumed to be alternatives, thereby becoming more or less appendages, and often second-rate
ones at that, to modern justice systems where the emphasis is on legal rights. It is not surprising
then that popular justice programs in advanced societies frequently are not selected by eligible
accused persons, that the constituency served is often the disadvantaged who cannot command
other legal resources, and that there is little actual community development or empowerment.
Yet, Depew acknowledges the promise of community-based justice systems that work and
provide not only an alternative to the current system but also the possibility of a more
comprehensive and effective approach to problems of crime and disorder.
Turning to popular justice in the Aboriginal context, Depew contrasts perspectives which
emphasize Aboriginal cultural uniqueness (e.g. Ross, Turpel) and those which emphasize
structural factors (e.g. LaPrairie), a distinction that could have significant social policy
implications. While favouring the structural perspective, he acknowledges that certain cultural
factors may especially apply in Aboriginal communities which he argues are set apart often by
“their ability to reproduce themselves as a ‘community of relatives and friends’ rather than
‘communities of strangers’”. Depew appreciates the need for better access to a quality of
justice that is more in tune with Aboriginal realities and where Aboriginal peoples can claim
some ownership and exercise more control. Still, he suggests that underlying proffered
15
Aboriginal justice interventions (e.g. sentencing circles, healing circles, Aboriginal traditions) has
been an illness, healing and health metaphor which is insufficient to the complexities of current
Aboriginal society. Depew highlights the situation of women in Aboriginal society in order to
illustrate dysfunctional aspects of the "Aboriginal culture as healer" paradigm. He also cites the
preliminary results of some pilot projects in Aboriginal justice which suggest victims are less
satisfied, that "traditional culture" may be manipulated to defend offender behaviour, that power
imbalances are neglected, and that there has been little community-building. There has been
precious little in-depth evaluation and scant attention to what the disproportionate levels of
person offences, and high female victimization, imply for communities' culture and structure.
Depew contends that justice problems in Aboriginal communities are more complex than the
current "healing paradigm" suggests. He refers to power and opportunity structures there that
rarely imply shared interests, values, or equality of access. In his view there is a need to
reconfigure these structures, and this imperative has somehow to become part of the popular
justice movement in Aboriginal society. It is a good argument though it does not address the
larger political questions or strategies of the self-government movement, nor the priorities for
realizing long-term common interests that may be intricately involved with current emphases on
holistic myths and cultural uniqueness.
Donlevy, Bonnie. Sentencing Circles and the Search for Aboriginal Justice. Indian &
Aboriginal Law, University of Saskatchewan, 1994
Dumont, James. "Justice and Aboriginal Peoples" in Aboriginal Peoples and the
Justice System, edited by the Royal Commission on Aboriginal Peoples. Ottawa:
Ministry of Supply and Services, 1991
Dumont contrasts Aboriginal values and behaviours with the non-Aboriginal, abstracting culture
from social organization and social ecology. It is largely uncritical and non-empirical in its
treatment of Aboriginal culture and does not consider the great variation that existed among
diverse groups in relation to size, ecology, and so forth. Dumont discusses Aboriginal culture as
respect for harmony, emphasis on reconciliation, respect for the teaching of elders, and the use
of ridicule and ostracism to control behaviour.
Etzioni, A., The Spirit of Community: Rights, Responsibilities and the Communitarian
Agenda. New York: Crown Publishers, 1993
This book has been heralded around the world as advancing the social movement for
communitarian ideals, with the attendant implications of community-based justice and
community problem-solving. Etzioni attempts to shift the moral agenda away from individualism
and formal legal rights back to the community, away from "market-driven consumerism
towards morally-driven, inter-personal relations". He presents a positive vision of communitarian
politics more than an attack against liberalism and the all-powerful interventionist state. Arguing
for the current need for balance, he emphasizes responsibilities more than rights, the rebuilding
of moral communities, and a decentralized pluralism of communities ("pluralism within unity").
Acknowledging that communities may not have resources and may be characterized by power
16
imbalances and local elitism of one sort or another, Etzioni calls for a 'suasive' rather than
'coercive' community power, and for evaluation to monitor the extent to which the vision of the
community is "fully responsive to all the authentic needs of all members of the community".
Certainly there are real concerns raised by this book, such as the danger of off-loading
responsibilities onto resource-limited communities, but the ideas are clearly articulated and quite
timely. The arguments developed seem quite congruent with trends within Aboriginal society for
more autonomy, more community-based solutions, and new strategies of healing and balance.
Feeley, Malcolm. Court Reform on Trial: Why Simple Solutions Fail. New York: Basic
Books, 1983
This is an excellent analysis of why adult diversion programs accomplished very little in practice
in the United States during their heyday in the 1970s. Essentially he contends, and the data bear
this out, that too few cases were handled, largely because eligible arrestees did not select this
option for very good reasons. Divertees' rates of re-offending did not differ significantly from
those of other comparable offenders. In his view the courts, unlike their image in diversion
theory, have already adopted flexible and informal alternatives on their own, with the result that
"diversion is no big deal" and offers the defendant little while it may provide more hassle and
fewer procedural safeguards.
Fitzpatrick, P. "The Impossibility of Popular Justice". Journal of Social and Legal
Studies, 2, Vol. 1, 1992
This article is a critique of popular or informal justice as it is, and has been, implemented in
modern society. Essentially the author argues that there is much compatibility between informal
justice and formal justice and that the former, in practice, draws upon, is constrained by, and
legitimates formal justice. In making his points the author refers to the most famous community
mediation program in the United States namely San Francisco's Community Boards. He notes
that it has features quite compatible with formal mainstream justice such as decontextualizing
cases (avoiding larger issues unearthed by a two-party dispute) and the quasi-professional
status of the mediators. Fitzpatrick contends that the popularity of alternative justice rests on its
expressing values that deservedly elicit broad allegiance, such as equality not only between
those in dispute but also between them and the people charged with resolving the conflict. Yet
these values are not realized in informal justice programs and there is little specific information in
this article on how to do so. The author raises complex issues and his arguments are complex
and theoretical. While not ostensibly positive about the chances for 'true' informal justice (see his
title) and offering no clear recipes, he does call attention to factors such as equality among all
participants, participation, and community support as generating a more authentic informal or
alternative justice.
Francis, Bernie. “Mi'kmaw Justice Concepts”, paper given at Aboriginal Awareness
Week, Dalhousie Law School, February 6, 1997
17
Here Francis highlights concepts that can be found in Mi'kmaq language which relate to justice
concerns and processes. In particular he isolates four chief concepts and discusses how they
represent apology, reparation, reconciliation, and wisdom.
Galaway, Burt, and Joe Hudson (eds.). Restorative Justice: International
Perspectives. Monsey, NY: Criminal Justice Press, 1996
This book describes well the recent international experience with restorative justice through this
collection of mostly original papers written by scholars from around the globe. The thirty
articles, five of which focus on Aboriginal initiatives, deal with a wide range of restorative justice
issues and depict the considerable diversity of restorative justice thinking and projects.
In a brief introduction the editors identify some common themes. They indicate that at the core
of restorative justice, as reflected in this book, is victim-offender reconciliation. Three elements
are seen as fundamental, namely that crime is primarily conflict between individuals, that the
goals of justice processes should be reconciliation and reparation, and that justice processes
should facilitate the active participation of victims, offenders, and other community members.
The centre-piece of the restorative justice experience is considered to be "the offender
expressing shame and remorse for his or her actions, and the victim taking at least a first step
toward forgiving the offender for the incident". The editors list numerous desired outcomes for
victims (e.g. a sense of closure), the offender (e.g. reintegration), and community (e.g.
humanizing the justice system). Yet, while advocates, the editors are realistic, noting that "little
research is reported in these chapters", and "little rigorous evidence is available to support the
extent to which these [purported outcomes] are actually achieved".
Giddens, Anthony. The Consequences of Modernity. Stanford, CA: Stanford
University Press, 1990
This is a classic treatise on modernity by one of world's leading sociologists. It discusses how
modernity arose, and became a global phenomenon. Particularly significant are the analyses of
the kind of processes that it has unleashed, and the risks and promises that modernity holds out
for human life. Of special relevance here are three ideas. First, Giddens argues that modernity
has been shaped by Western culture with its particular values and structures. Accordingly,
traditional societies and cultures, such as Aboriginal systems, experiencing modernity are subject
to powerful but subtle pressures to reproduce these values and structures, whether in the field of
justice or some other field. Secondly, Giddens discusses processes of modernity such as
"distanciation" (i.e. social relations are no longer tied to particular locales), and "disembedding"
(i.e. 'lifting out' understanding of social relations from local contexts) which provide the
legitimizing basis for the increasing reliance on professional and technical experts. Clearly, to the
extent that the local context is deemed to be an essential feature of social relations, and/or there
is insufficient trust in professionals, community-based programs in justice (e.g. treatment
programs) will be more strongly emphasized. Thirdly, Giddens notes that modernity brings an
increased risk of the growth of totalitarian power at the same time as it holds out the promise of
multilayered democratic participation.
18
Giokas, John. "Accommodating Concerns of Aboriginal Peoples Within the Existing
Justice System", in Aboriginal Peoples and the Justice System. Ottawa: Royal
Commission on Aboriginal Peoples, 1993
Giokas makes two principal points in this article. He emphasizes the need for projects dealing
with the development of internal community structures for Aboriginal criminal justice and he
argues that the best way to avoid Aboriginal alienation is to avoid the court altogether, diverting
people to more appropriate forums where there can be a focus on community methods of
restoration and healing.
Green, Gordon. "Community Sentencing and Mediation in Aboriginal Communities",
Manitoba Law Journal, 1998
This paper is based on interviews and field observation in six Aboriginal communities in
Saskatchewan and Manitoba. No victims and few offenders were interviewed. Starting from the
over-representation, inequity, and alienation perspective, the author discusses the new initiatives
in six communities serviced by a circuit court and policed by the RCMP. He discusses circle
sentencing (extensively utilized in Yukon and to a lesser extent in Manitoba, Quebec, and
Saskatchewan), its physical arrangements, emphasis on informality and equality among
participants, core attenders, range of styles, legal status of circle recommendations (there is no
provision in the Criminal Code for these and they may be likened to pre-sentence reports but
judges indicate a strong commitment to the recommendations), public accessibility, emphasis on
consensus among participants (though not necessarily unanimity), and resource commitment
(they take time!). He notes the criteria for selection of cases that have developed in some areas
and mentions, too, protocol negotiations (e.g. Hollow Water) and the possible screening by a
local justice committee. Some problems, and other limitations highlighted, concern domestic
violence cases where there may be power imbalances between the victim's and the offender's
'sides', long delays required to shore up victim participation, the need for protection especially
for victims, and the need for some impartial agent to facilitate the interaction. Also discussed are
elder panels and sentence advisory committees (here the sentencing circle committee may meet
independently and then submit recommendations to the judge to save court time as well as
empowering the community), and community mediation (the Criminal Code was amended in
1996 to recognise adult alternative measures programs). In considering the impact to-date the
author notes that it is still premature but the following points can be advanced: the sentencing
circle has been viewed by Aboriginal people as having traditional significance; victim
involvement has been inconsistent and the support available for them sometimes less than that
for offenders; a common view is that for offenders "it's an easy way out" especially as treatment
options are so limited; concern exists about power imbalances though there has been little direct
sign of attempted political interference; usage is still quite limited; statutory reform is unnecessary
though there has been little appellate court comment and there may be issues regarding
Aboriginal rights here that require appellate decisions. Green thinks that the initiatives could well
apply to non-Aboriginal communities.
Hall, G.R. "The Quest for Native Self-Government: The Challenge of Territorial
Sovereignty", University of Toronto Faculty of Law Review, 50, 1992
19
The author presents an interesting argument that the principle of territorial sovereignty threatens
to make self-government among Aboriginal peoples unworkable. Self-government presumably
requires the establishment of a separate legal order applying only to Aboriginal people but the
concept of territorial sovereignty, reflected in the usual interpretations of the 'rule of law', has led
to judicial judgements that the criminal law of Canada must always be followed where there is
conflict between the criminal law and Aboriginal traditions and customs. Hall contends that
territorial sovereignty is not an absolute in the existing legal order, pointing to how taxation law,
admiralty law, military law and diplomatic immunity all provide flexibility in the application of the
sovereignty principle. In his view the existing law, imaginatively and generously interpreted, can
become a positive force for the recognition of Aboriginal self- government and can free
Aboriginals to design self-government in creative and innovative ways. The author provides
detailed case and statute review to support his arguments.
Hamilton, A.C. and C.M. Sinclair. The Justice System and Aboriginal People: Report
of the Aboriginal Justice Inquiry of Manitoba, Volume 1. Winnipeg: The Queen's
Printer, 1991
This is the first of two volumes produced by the above commissioners of the Public Inquiry into
the Administration of Justice and Aboriginal People in Manitoba. While this volume focuses
upon general considerations and contains numerous recommendations covering the whole gamut
of criminal justice issues, the second volume deals specifically with the deaths of Helen Betty
Osborne and John Joseph Harper, specific incidents that sparked the demand for a public
inquiry. Volume One is an indictment of the justice system as far as Aboriginal peoples' rights
and level of received service are concerned. While many of the recommendations as regards
policing, and the administration of justice, are similar to those advanced in other public inquiries,
the commissioners call for a major reorganization of justice for Aboriginal peoples in Manitoba,
going far beyond the Marshall Inquiry (see below) in calling for province-wide, Aboriginalcontrolled justice structures for Aboriginal peoples and a significantly autonomous Aboriginal
system, based on Aboriginal principles and experience.
Harding, J. and B. Forgay. Breaking Down The Walls: A Bibliography on the Pursuit
of Aboriginal Justice. Regina: Prairie Justice Research, University of Regina, 1991.
Hickman, A. Report of the Royal Commission on the Donald Marshall Jr. Prosecution.
Halifax: Province of Nova Scotia, 1989
This Royal Commission was sparked by the wrongful prosecution of Donald Marshall Jr., a
seventeen year old Mi'kmaq youth who served eleven years in prison for a murder that he did
not commit. The two year inquiry issued its findings and recommendations, from hearings,
conferences, and original research, in seven volumes. Volume 1 provides the overall findings
and recommendations while other volumes deal with related themes. Perhaps of most relevance
here is Volume 3 , S. Clark's The Mi'kmaq and Criminal Justice in Nova Scotia: Research
Study. The Royal Commission concludes that Marshall's status as an Aboriginal contributed to
the miscarriage of justice (i.e. his wrongful prosecution) and that racism and two-tiered justice
20
(i.e. one treatment for the powerful and another type for ordinary citizens) are found in Nova
Scotia's justice system. Its eighty-two recommendations deal with compensation for Marshall
and his family, matters of the administration of justice in Nova Scotia (e.g. the relationship of
police to prosecution, the independence of the prosecutor's office vis-à-vis political authorities),
policy concerning the wrongfully convicted, policing, minority group issues, and Mi'kmaq justice
concerns. The Marshall Inquiry was focused on matters of fairness and equity and ensuring that
the justice system involve better, and treat better, the Mi'kmaq people. It had an inclusive thrust,
improving the existing system, and did not explore issues of Aboriginal autonomy, difference and
so forth. Its recommendations as far as Aboriginal justice is concerned are modest but do call
for courts on the reserve, court workers, recruitment of Aboriginal people for police and court
roles, community involvement, diversion, and so forth. Although the specific recommendations
are modest the Inquiry has proved to be of considerable symbolic significance for the Mi'kmaq
and provides a basis for progress; in that sense it appears to have been seen in very positive
terms. And while the Commission's focus is on integration, it does conclude that "Native
Canadians have a right to a justice system they respect and which has respect for them. And
which dispenses justice in a manner consistent with and sensitive to their history, culture and
language".
In the accompanying volume, Mi'kmaq and Criminal Justice in Nova Scotia, Clark discusses
Mi'kmaq justice experiences and viewpoints especially on the three most populous reserves and
in metropolitan Halifax. He contends that "the process of justice has become an essential
component in Aboriginal plans to exercise self-determination" and this contention is borne out
by appendices to his study which are submissions on justice from Mi'kmaq leaders.
Hunt, C. "Aboriginal Decision-Making and Canadian Legal Institutions" in Journal of
Law and Anthropology, 6, 1991.
This paper deals with the question of the extent to which present methods of decision-making in
law and justice, in Aboriginal communities have been built upon traditional practices, and to
what extent have they been influenced by non-Aboriginal methods. The article is based on
library research, examining statutes, court cases and the like. The author notes that both the
Inuvialuit Agreement of 1984 and the Cree-Naskapi Act (a fundamental part of the James Bay
land claim agreements of 1975 and 1978) do entail significant Aboriginal uniqueness. Inuvialuit
procedures clearly allow for a major role to be played by local people (e.g. in assessment of
development applications) and the procedures "are very different than would be found in a nonAboriginal setting elsewhere in Canada". The Cree-Naskapi Act is seen as "far beyond the
Indian Act in recognizing customs and traditional forms of decision-making" (e.g. community
involvement, band distinctiveness). Recent court rulings have also strengthened the power of
Indian band by-laws, in the case of conflict of a validly-enacted band by-law in conflict with a
more general federal fishery regulation. The Constitution Act of 1982 (especially s. 35) has
rooted the special status of Aboriginal peoples and provided an entry for them to the
constitutional amendment process. While constitutional entrenchment of Aboriginal rights of selfdetermination remains unfulfilled the federal government has been pursuing self-government
arrangements on a band-to-band basis. Some bands such as the Sechelt of British Columbia
have formalized decision-making (e.g. electoral rules, band law authority procedures) that are
21
not very different from those followed in non-native communities. The author also notes that
there are some unique aspects (e.g. no party politics as such) in the operations of governments
in the Northwest Territories and some differences in the courts and law enforcement that reflect
Aboriginal uniqueness. The article is clearly an overview of the amalgam of the old and the new,
reflecting the way Aboriginal communities are evolving to their changing circumstances and
advancing in the adaptation of tradition to Canadian laws and institutions. The article is now
somewhat dated, missing of course all the developments in the justice field that have occurred in
the 1990s. Still it focuses upon an important question and by example provides a useful
methodology for examining the question.
Jackson, Michael. Locking Up Natives In Canada. Ottawa: A Report of the Canadian
Bar Association Committee on Imprisonment and Release, 1988
This monograph details the considerable over-representation of Aboriginal people in Canada's
federal and provincial prisons. The over-representation was particularly outrageous in
Saskatchewan, but it was (and continues to be) very significant throughout western Canada and
even in the eastern provinces. In addition, Jackson documents the extent to which the justice
system as a whole controlled Aboriginal peoples insofar as they had the highest rates of charges,
arrests, and incarceration of any ethnocultural grouping in Canada. The report now has the
status of a classic, both for its indictment of the Canadian justice system and for its suggestions
concerning Aboriginal empowerment. More up-to-date incarceration data can be found in
several works cited in this bibliography, notably LaPrairie's Examining Aboriginal Corrections In
Canada.
Jackson, Michael. "In Search of the Pathways to Justice: Alternative Dispute
Resolution in Aboriginal Communities", U.B.C. Law Review (Special Edition:
Aboriginal Justice), vol. 26, 1992
In this ninety-two page paper Jackson provides a comprehensive overview of Aboriginal justice
initiatives as a social movement. He outlines the several theoretical explanations commonly used
to explain the over-representation of Aboriginal peoples in the criminal justice system and
observes that each entails a different package of alternative initiatives. The cultural model (i.e.
the clash of Aboriginal and western cultures) invites alternatives such as cross-cultural training,
native court-workers and, more generally, indigenization. The structural model (i.e. the focus on
economic and social marginality) invites alternatives such as greater access, fine options, and
anti-poverty strategies. The third model, and the one held by Jackson, stresses the factor of
colonization and subjugation. Its entailed alternatives would focus on Aboriginal peoples' right to
control their own destiny, including control over the justice process in Aboriginal communities.
Jackson observes that many Aboriginal groupings have advanced the latter position (see
submissions by the Blood Tribe to the Cawsey Task Force and the report of the
Osnaburgh/Windigo Tribal Council, cited in this bibliography).
In discussing, briefly, the nature of Aboriginal systems of law and justice, Jackson refers to
American and Australian materials as well as Canadian. He identifies some distinctive themes
(e.g. the emphasis on community, on restoration and reintegration rather than punishment, the
22
higher priority given to collective rights) but cautions that Aboriginal systems are themselves
quite diverse. Jackson also places Aboriginal justice initiatives vis-à-vis the alternative dispute
resolution movement in the Canadian justice system. He notes that there has been a clear trend
over the past twenty years in calling for greater focus on restorative justice principles in criminal
justice policy and practice. Recently much attention has been given to the many parallels
between restorative justice principles and Aboriginal traditions of justice. At the same time he
argues that there are sharp differences, such as the greater emphasis in Aboriginal systems on
collective responsibility, on social and family networks, and on Aboriginal spirituality.
Consequently, while the shift in the mainstream justice system towards restorative justice may
permit greater accommodation between it and emerging Aboriginal systems, Jackson contends
that the legal pathway to justice for Aboriginal people must be found in their own initiatives.
In the last section of the paper Jackson discusses recent alternative dispute resolution initiatives
in Aboriginal communities. He cites the recommendations of several major inquiries (e.g.
Marshall, Cawsey) and specifically details initiatives advanced by the First Nations of South
Vancouver Island (Coast Salish), and the Gitksan and Wet'suwet peoples of North-Western
British Columbia. Jackson notes that these initiatives focus upon issues of special concern to the
communities (e.g. sexual abuse, wife battering) and entail strategies that are unique to Aboriginal
systems (e.g. the significant role of elders). While acknowledging that such initiatives can be
developed within the existing justice system, he makes it clear that enabling legislation would
guarantee respect, and perhaps funding, from non-native participants in the criminal justice
process, as well as facilitating a sense of ownership and accountability in the Aboriginal
communities. It can be noted that virtually all Aboriginal justice initiatives cited by Jackson were
in the preliminary stage and did not have significant secure funding; nor was there any evidence
marshalled to assess issues of equity, efficiency and effectiveness with respect to the new
Aboriginal justice initiatives.
Overall, while the examples provided may be dated, this is an excellent paper which consistently
develops a particular viewpoint.
Krawll, Marcia. Understanding the Role of Healing in Aboriginal Communities.
Ottawa: Solicitor General Canada, Aboriginal Peoples Collection, 1994 (also available
on Internet homepage (http://www.sgc.gc.ca)
What does healing mean in Aboriginal communities? How does the conception of healing take
into account the offender, the victim and the community? Do Aboriginal peoples and nonAboriginal government officials understand healing in similar ways? How can government,
especially Solicitor General Canada, facilitate healing in Aboriginal communities? In this brief
report Krawll discusses the results of her research into these timely questions. Using a variety of
methods, she explored perspectives and experiences regarding healing in several Aboriginal
communities (including interviews with elders, youths and caregivers) and secured the views and
opinions of federal and provincial officials. All told, she contacted some 121 persons across
Canada. In presenting her research results Krawll develops a handful of organizing themes and
draws out their central points, illustrating them with quotations from the persons interviewed.
23
The central conclusions Krawll draws from the research are three-fold. First she suggests that
there is both a common core and also much variety among Aboriginal peoples with respect to
their perspectives and experiences of healing. The common core centres on the idea that healing
is a process which has three key aspects, that healing comes from within individuals and moves
outward to encompass the family and the community, that it must reflect a balance among all
parts of life, and that, while initiated in discrete fashion through specific programs (e.g. alcohol
and drug counselling), it must become holistic. Secondly, Krawll contends that healing can be
seen as community development in a broad sense. The people interviewed envisaged healing in
the context of the healthy community. From a justice perspective this entails a recognition that
both offender and victim are part of the same community and that the community must support
both as part of a healing-based approach. As community development, Krawll reports that the
key indicator of healing is that people take responsibility for their community. The community
development process usually has been initiated by core community groups and is built upon
what is already in place. Thirdly, Krawll observes that Aboriginal peoples and non-Aboriginal
peoples (at least, in her sample) understand and feel about healing in quite similar ways.
Moreover, they tend to have similar views on the role of government as listener, observer, and
facilitator, allowing the community itself to maintain control and develop/acquire the skills and
resources needed to carry on more autonomously.
The report has some limitations. The heavy dependence on quotations means that there is little
context given either for the communities involved or the individual interviewees. It is unclear as
to how much consensus is associated with the themes that the author has derived from the
research. Also, the role of government is rather superficially developed and it seems that there
are no principles for governmental policy other than to support community actions. Still it is a
useful contribution to an important issue in Aboriginal justice.
Kulig, Paula. "Balancing Rights: The Native Justice Debate" in Canadian Lawyer,
February, 1993
In this brief article the author presents, without revealing her own bottom-line position, some
pros and cons for the idea of a separate Aboriginal justice system. The author notes that while
commission reports (e.g. the Manitoba Aboriginal Justice Inquiry of 1991) and many experts,
academic and political, have strongly supported the concept, governments at both the federal
and provincial levels, have emphasized accommodation within the existing justice system, albeit
promising significant positive change for Aboriginal peoples. In the author's view a central issue
in the controversy concerns the status of the Charter of Rights and Freedom. Governments, as
well as certain Aboriginal interests, have emphasized the need to guarantee the Charter rights
and freedoms for all Canadians, while proponents of a separate justice system, in the author's
view, either discount the Charter's significance or suggest that Aboriginal peoples can develop
an adequate alternative to it.
LaPrairie, Carol. "The Young Offenders Act and Aboriginal Youth" in Joe Hudson et
al, (eds.). Justice and the Young Offender in Canada. Toronto: Wall and Thompson,
1988
24
This paper establishes the considerable over-representation of Aboriginal youth in the criminal
justice system. Associated with this pattern were major structural differences between
Aboriginal and non-Aboriginal youth (e.g. income, education, family background) but little
difference in the kinds of offences committed. Causes of Aboriginal delinquency were identified
as culture conflict, boredom, alienation, and loss of parental discipline, all generated by years of
colonialization and underdevelopment. Environmental factors such as socio-economic
marginality, geographic isolation, and community erosion suggest that Aboriginal youth may be
especially vulnerable to justice processing and hence the harsher effects of some YOA
provisions. To correct for this systemic structural discrimination, in LaPrairie's view, requires
more community control over justice matters where traditional customs, values, and practices
can be incorporated but this will require significant resources as well as creative interventions.
LaPrairie, Carol. “Community Justice or Just Communities? Aboriginal Communities
in Search of Justice”. Folk Law and Legal Pluralism Symposium. Mexico City, 1993
The theme of the Mexico conference was "the need to move beyond the confines of legal
institutions to other bodies and agencies which construct social relations". There was substantial
criticism, however, concerning the legitimacy and the efficacy of popular justice and the extent
to which it is really an alternative to state control and more than a tool for the locally powerful
elite. As LaPrairie observes, "legal pluralism and community justice have no fixed political
content and may serve either progressive or reactionary politics". LaPrairie tries to make a case
for the former, arguing that popular justice, especially Aboriginal justice initiatives, should be
directed at transforming communities into 'just communities', clearly a broader role than the
mainstream justice system has.
Turning to justice initiatives in Aboriginal communities, LaPrairie discusses a variety of issues in
relation to her own justice research among the Cree, in the Yukon, and in the inner cities of
Canada. Her argument is that there is an absence of detail in the plans for Aboriginal justice,
little discussion of community needs and realities, and that the agenda is largely driven by the
idea of self-government where jurisdiction is the key issue. The over-representation of
Aboriginals among offenders and incarcerates also fuels this uncritical discourse in her view. The
net result is less attention to structural problems and less discussion of needed resources (both
material and educational) for Aboriginal communities, both of which militate against the creation
of 'just communities'.
LaPrairie, Carol. Justice for the Cree: Communities, Crime and Order. Cree Regional
Authority, Nemaska, Quebec, 1994
This major study involved a team of several scholars headed by LaPrairie. Perhaps the
fundamental thesis developed here is the idea that there should be less focus upon
oversentencing and the response of the justice system and more attention paid to the cultural
and structural factors that generate crime and conflict, and in particular to the community and
community development. She emphasizes on and off reserve differences, the problem of repeat
offenders, the erosion of traditional social controls due to irrevocably changed social and
economic circumstances, and variation by community. There is a vision here, more than a
25
convincing analysis of either the problem or the need for community control. Certainly, specific
interventions such as extensive mediation, alternative dispute resolution, and community policing
are encouraged and seemingly unproblematic but the core vision is not well delineated.
LaPrairie, Carol. Changing Directions in Criminal Justice. Ottawa: Department of
Justice, 1994
In this paper LaPrairie discusses new initiatives in popular or restorative justice based on the
premise that the conventional criminal justice systems ignore the social context of offences and
marginalize the offender, the victim, and the community, whereas restorative justice emphasizes
social rather than legal goals and empowers communities and individuals in dealing with
problems and influencing the direction of the criminal justice system. She discusses the theory
behind the restorative justice movement (e.g. communitarianism, community, restorative, or
transformative justice). She goes on to compare family group conferencing and sentencing
circles, two of the principal restorative justice interventions and common in Australia / New
Zealand and Canada (primarily the Yukon and Saskatchewan) respectively. She compares the
two in terms of theory, definitions and objectives, process and principles, and effectiveness. In
general, while both share a large common 'domain of sentiments', sentencing circles are judged
to be more Aboriginal-focused (though family conferencing advocates usually link their
approach to Aboriginal traditions as well), more focused on the offender than the event, more
oriented to adult offenders, less clearly formulated in theory and in operational guidelines, and
more open to abuse and misunderstanding. For example, in her view, the sentencing circle
intervention is often accompanied by unexamined postulates (e.g. cultural consensus) and
underestimates power imbalances in the community. LaPrairie appreciates the arguments for
flexibility and "the greater good" of political imperatives but argues that critical analyses and
assessments should be encouraged.
This paper provides a brief but valuable description of the processes and principles that
characterize sentencing circles, clearly pointing to the considerable vagueness that exists on both
fronts. LaPrairie lists the chief criticisms of commentators as the need for guidelines in setting up
and operating circles, the potential for sentence disparity among similar criminal cases, the role
of and impact on victims, the 'representativeness' of participants, how offences and offenders for
circle sentencing are selected, the lack of procedural safeguards, the community impact, and the
degree to which sentencing circles reflect Aboriginal traditions and value. As of the end of 1994
there have been approximately 300 circle sentencing experiences in the Yukon Territories,
about 100 in Saskatchewan and a handful in Manitoba and British Columbia.
LaPrairie, Carol. Seen But Not Heard: Native People In The Inner City. Ottawa:
Department of Justice, 1994
This monograph presents the results of an imaginative and valuable research project undertaken
by LaPrairie. She focused upon Aboriginal persons in the inner cities of Canada and, with her
colleagues, interviewed 621 such persons in four cities, namely Montreal, Toronto, Regina and
Edmonton. The research addressed several key issues: why are Aboriginal people so
overrepresented in terms of charges, arrests, and incarceration? why do these levels of
26
overrepresentation vary so significantly between eastern Canadian and western Canadian inner
cities? are there sources of difference and heterogeneity among inner city inhabitants that are
crucial for policy purposes? Imaginative techniques (e.g. consulting local service agencies, hiring
contact persons, paying participants) were utilized to identify respondents and arrange the
interviews which were conducted in the field. The monograph is divided into three sections. Part
one deals with the inner city sample as a whole and examines the diverse social strata and their
associated criminal justice patterns. Part two provides a comparison of the four inner cities in
terms of social strata, life experiences and criminal justice patterns; part three deals with
victimization and family violence among inner city Aboriginal people.
LaPrairie shows clearly the considerable socio-economic disadvantage, and overrepresentation
of inner city Aboriginal people, compared to Canadians as a whole, in arrests and incarceration.
Early in the research LaPrairie developed a typology of inner city Aboriginal people which had
three categories, namely street people, inner city residents but not street people, and users of
inner local agencies and services who lived outside the inner city area. To a large extent these
groupings constituted a continuum from high to low with respect to incidence of arrests, serious
offences, incarceration, experience of serious family violence in youth, low income,
unemployment, and current levels of social disorder. She found that western inner cities differed
from eastern inner cities in terms of the proportion of their Aboriginal population falling into
categories one and two, and in terms of the Aboriginal persons there being in more criminogenic
social environments. LaPrairie also found that the most vulnerable and victimized Aboriginal
people were those who were most at risk of being serious violent offenders, and who had the
most violent and abusive family backgrounds. A strong link was established between early
family abuse, juvenile conflict with the justice system, and adult problems and incarceration.
There is much other valuable descriptive material in this report involving issues such as who uses
Aboriginal-oriented service agencies, variation in attitudes towards the police, racism, etc.
In drawing out the policy implication of the research, LaPrairie emphasizes the importance of
measures to effect social stability (e.g. housing, jobs) and to deal with the serious family and
related child abuse. Unless childhood conditions can be improved and adult social and
economic marginality overcome, the prospects for positive change would be limited. In light of
the diversity of the inner city Aboriginal population and the severity of its problems, treatment
programs have to be finely crafted and tailored to specific subpopulations. The author also calls
for changes in the way the criminal justice system functions with reference to the inner city,
urging a more substantial community partnership in policing, and a diversion or restorative
justice approach which is appropriately generous in its criteria for eligibility.
LaPrairie, Carol. “Conferencing In Aboriginal Communities In Canada: Finding
Middle Ground in Criminal Justice?”, Criminal Law Forum, vol. 6, no 3, 1995
Here the author reflects on the family conferencing developments in Australia and on how they
might emerge in Canada's Aboriginal communities. She reviews the origin of family conferencing
in New Zealand and Australia and the associated theoretical underpinnings. The core sequence
of conferencing is identified as the giving and acceptance of an apology between offender and
victim. The role of the facilitator is especially to see that the key components of reintegrative
27
shaming occur. LaPrairie observes that conferencing presents an opportunity for offenders to
make new connections with people. In addressing the implications for Aboriginal communities in
Canada she notes that family conferences should be expeditious, involve the extended families,
and feature trained facilitators. She suggests that such conferencing can bring people together
and help develop communitarianism and community institutions. Conferences also may represent
safe places where conflicts can be talked out and resolved. She emphasizes the required
presence of an authoritative extended family representative, and a trained facilitator to effect
both strong community commitment and protection of rights respectively.
LaPrairie stresses the need for projects and programs to be independently and dispassionately
evaluated. Implementation and impact studies need be done. Community and project personnel
have to be involved in negotiating the evaluation framework and key criteria (e.g. what do we
mean by success?). She concludes by arguing that projects have to be assessed in relation to
community issues, project objectives, and government priorities, and she offers very useful
guideline questions for the community and project referents.
LaPrairie, Carol. The New Justice: Some Implications For Aboriginal Communities.
Ottawa: Department of Justice, 1996
Here the author discusses the restorative justice movement and its emphasis on community. She
has a long section on the concept of community and where its current thrust comes from – an
effort to restore "a civic culture" in the larger society, and the self-government thrust among
Aboriginal peoples. She tackles five aspects of community, namely defining the community
(geographical and interest bases), representation (warning against the engulfment of offenders at
the expense of victims and others), involvement and participation (warning about the simplicity
of myths with respect to the level of communitarianism that exists), competing justice roles (how
to transcend dominant local groupings as well as the mainstream styles), and accountability
(regular monitoring and accounting). In her final section she bemoans the "almost total lack of
evaluation material and findings", and notes that the few evaluations that have been done point to
the failure of incorporating victims, and to the lack of community understanding of the initiative.
LaPrairie goes on to suggest guidelines or principles to be heeded in developing local justice
projects.
LaPrairie, Carol. Understanding The Context For Crime and Criminal Justice
Processing of Aboriginal People In Saskatchewan. Ottawa: Department of Justice,
1996
Here focus is on the heavy over-representation of Aboriginal offenders in the criminal courts of
urban centres in Saskatchewan. The majority of offences are shown not to be serious, and the
over-representation in part a function of recidivism among a small group of offenders. The overrepresentation itself is seen as significantly, though not entirely, accounted for by demographics
and economic marginality, and the implications of the latter for current modes of processing
cases in the courts (i.e. the disadvantaged are more likely to be incarcerated). LaPrairie makes
a strong case for putting more resources into dealing with the socio-economic situation of offreserve Aboriginal youth, arguing that they constitute the vulnerable core of western Canada's
28
inner cities. She also argues that less serious offences (and similar such prior convictions), as
well as processing offences such as failure to appear or failure to comply, should not exclude
such youth from diversion and alternative measures. In her view much greater effort in the justice
system should be devoted to restorative justice and problem-solving.
LaPrairie, Carol. Examining Aboriginal Corrections In Canada. Ottawa: Solicitor
General Canada, Aboriginal Peoples Collection, 1996 (also available on Internet
homepage (http://www.sgc.gc.ca)
This monograph provides an in-depth assessment of Aboriginal corrections in Canada. It is
based on a variety of methods (interviews, analyses of corrections data, excellent bibliographical
review, etc.) and always seeks to place Aboriginal corrections in the larger contexts of
Canada's corrections policy, Aboriginal social and cultural realities, and general criminological
theory. The author establishes the point that Aboriginal peoples are particularly overrepresented in prisons in western Canada. She contends that this is primarily because Canada,
as a society, uses the imprisonment sanction quite heavily in comparison to other societies, and
Aboriginal peoples, particularly in the prairie provinces, fall disproportionately into the
disadvantaged socio-economic category most vulnerable to being caught up in the criminal
justice system. She also discusses the programming available for Aboriginal inmates, noting that
not only is there insufficient information on the value of the mainstream programs for Aboriginal
offenders, but also that few critical questions or in-depth evaluations have been advanced
concerning the cultural and spiritual Aboriginal programming that has become so commonplace
in prisons in recent years. Surveys of inmates have consistently indicated that education and
employment programs were deemed to be the greatest needs, and substance abuse the greatest
problem. The lack of support from the home community and the problems of reintegration there
have been quite neglected, perhaps because of presumptions made about Aboriginal
communities as a whole. LaPrairie advances many policy suggestions, primarily calling for
alternatives to imprisonment, refocusing community sanctions to facilitate reintegration, and
community development strategies to get at the primary causes of the social problems that are at
the heart of Aboriginal over-representation.
While some of LaPrairie's contentions can be challenged (e.g. the claim of little post-arrest racial
discrimination may hold for sentencing and corrections but might overlook areas such as bail
and plea-bargaining), she makes many insightful observations (e.g. with respect to Aboriginal
offenders one especially sees that dealing with the life circumstances and experiences that result
in federal sentences is extremely difficult for the criminal justice system to address). Her central
thesis is well developed, namely that the cause of Aboriginal over-representation lies largely in
the social and economic conditions of Aboriginal communities (e.g. the legacy of colonialism,
discrimination, etc.) and that these same type of factors inhibit current rehabilitative efforts.
Consequently there is a need for refocusing community sanctions, and for effecting community
involvement and community programs in the context of community development and
institutionalization, and emphasizing that the development of local justice interventions must be
guided by that larger imperative.
29
LaPrairie, Carol and Julian Roberts. "Circle Sentencing, Restorative Justice and the
Role of the Community", Canadian Journal of Criminology, 1997
In this short paper LaPrairie and Roberts make the case for a more scholarly and critical
examination of sentencing circles which have become quite extensive in Canada. After
describing circle sentencing (the authors refer to the paradigmatic case "R. v. Moses") they note
that it is part of the restorative justice movement which in Aboriginal communities is also taking
place in the context of self-government and empowerment of communities. They raise several
important questions regarding restorative justice initiatives: is the practice carried out as
theoretically conceived? are all legal guarantees there for both offender and victim? is the overall
position of the victim better off under this approach? is it better for the rehabilitation and
education of the offenders? for what type of offences and kinds of offenders is it suitable? is it
an alternative or just another strategy? how does restorative justice impact on the community
with its diversity, conflicts, and power imbalances?
They talk about basic community issues as per earlier LaPrairie papers, namely defining the
community, representing the community, community participation and involvement, and also
whether the community has the skills, and willingness to deal successfully with chronic offenders,
as well as the occasional ones. If not, they argue, might such projects merely divert resources
from other more effective community initiatives? They also raise questions concerning
community justice roles (what is their transformative potential?), and the many levels of
accountability of these projects and initiatives – accountability to the community, the victim etc.,
accountability of community leaders to the community concerning such projects, and
accountability of funding sources to provide technical assistance and support to projects. The
authors wonder also whether judges pay attention to a wide enough range of community voices
in the sentencing circle format.
Law Reform Commission of Canada, Aboriginal Peoples and Criminal Justice:
Equality, Respect and the Search for Justice. Ottawa: Law Reform Commission of
Canada, 1991
This important document called for the establishment of Aboriginal justice systems. The report
stressed the merits of Aboriginal-controlled justice systems quite apart from the "political
considerations" of self-government. While reaffirming its general position on the desirability of
the criminal justice system imposing the same requirements on all members of society, the
Commission held that Aboriginal persons have a 'different constitutional status' and therefore
constitute an acceptable special case.
Linn, P. Report of the Saskatchewan Indian Justice Review Committee. Regina 1992
Linn, P. Report of the Saskatchewan Metis Justice Review Committee. Regina 1992
The two above reports deal with Aboriginal justice issues and concerns in Saskatchewan. The
focus in both reports is explicitly short-term and oriented to community-based services. There
are data, analyses, and recommendations especially in the areas of youth, policing, and
30
sentencing alternatives. Both reports are relatively short, about 100 pages, and contain a handful
of appendices.
MacDonald, Roderick. "Recognizing and Legitimating Aboriginal Justice" in
Aboriginal Peoples and the Justice System. Ottawa: Royal Commission on Aboriginal
Peoples, 1993
The author deals with the larger question of legal pluralism in contrast with the present system of
legal centralism or monism where adversarial adjudication is the dominant procedural model and
the key to justice is "ensuring that everyone has an equal opportunity to set in motion the system
which permits the designated 'official' actors to play their defined roles". MacDonald holds that
reality is not congruent with the thrust of legal centralism, especially at the ideological level and in
the administration of justice. He places Aboriginal alternatives in the context of legal pluralism
and the development of mechanisms for addressing conflict in the socio-cultural frame from
which it arises. In his view the most significant failures of the present system of justice are
failures of recognition not failures of access; accordingly, acknowledgement of Aboriginal
difference (i.e. recognition) can benefit Canadian society as a whole and especially
disadvantaged segments within it.
Macklem, Patrick. "Aboriginal Peoples, Criminal Justice Initiatives and the
Constitution" in U.B.C. Law Review, vol. 26, 1992
The author provides an interesting and clearly stated analysis of the constitutional bases for
Aboriginal justice initiatives. His essential position is that the combined effect of s. 35(1) of the
Constitution Act, 1982 and s. 25 of the Charter of Rights and Freedoms provide a strong basis
for enabling "Aboriginal peoples to assume more responsibility for the administration of justice in
Aboriginal communities across the country". S. 35(1) enshrined in the Constitution Aboriginal
rights that existed at common law. The crucial issue with respect to s. 35, as seen in Supreme
Court decisions such as R v Sparrow, is establishing that a practice, a specific form of social
and political organization (such as unique arrangements with respect to criminal justice), that had
not been extinguished by law prior to 1982 is indeed integral to the self definition of an
Aboriginal community, and therefore can be defined as an existing Aboriginal right. Macklem
gives the example that the role of the clan councils in the mediation of disputes involving
wrongdoing in Iroquois society may well be integral to the self-definition of the Iroquois nation.
Other sections of the Constitution Act, 1982, such as s.25 of the Charter (which shields
Aboriginal rights from Charter scrutiny) provide legislative flexibility for initiatives that confer
greater control over criminal justice onto Aboriginal communities and permit differential rights
for Aboriginal peoples. In sum, Macklem argues persuasively that the current constitutional
framework affords a great deal of scope for the enactment of laws that recognize Aboriginal
difference in the realm of criminal justice.
McDonnell, Roger. "Prospects for Accountability in Canadian Aboriginal Justice
Systems", in P. Stenning (ed.). Accountability for Criminal Justice: Selected Essays.
Toronto: University of Toronto Press, 1995
31
This is an interesting, thoughtful essay on the prospects for accountability in Canada's evolving
Aboriginal justice systems wherein the author draws primarily upon his own research among the
Cree in Quebec. He contends that most Aboriginal justice initiatives have represented attempts
to graft local institutional creations to mainstream justice procedures. In his view if alternatives
are to be developed that are deemed by Aboriginal peoples as appropriately reflecting
traditional culture for their particular communities, then there has to be more thought directed to
questions of accountability, such as what standards to employ in assessing conduct, and what
mechanisms should be available for ensuring compliance. The author identifies the two major
challenges here as (a) community heterogeneity and diversity (traditionally, interdependent roles
provided solidarity in a situation where no common law or set of regulations and constraints
bound everyone equally), and (b) that band societies typically do not recognize any enduring
authority at the level of the band (self-determination implying authoritative structures seems
incongruent with band organization and appears to require conceptualizing bands as quasitribes).
Modern bands are administrative, governmental creations that bear little relationship to
traditional bands but in the author's view the above challenges remain significant. Moreover he
contends that there are radically different views in Aboriginal communities on what passes for
'our traditions' and often the populace feels that locals who would establish priorities and
implement policies on their behalf are no less alien than the state agencies were. Aboriginal
societies, in the author's view, are largely composed of people who simultaneously place value
on both a mainstream 'civic tradition' (e.g. individuality, equality, impartiality) and on traditions
(e.g. treating people differently by reference to age, gender, and kinship) contradictory to it.
McDonnell allows that there may be much in the ethic of impartiality that is meaningless in
contemporary Aboriginal societies, and much in the idea of the ageless, genderless, status-less
abstraction of the individual that could be found objectionable. Still these pillar principles of the
civic tradition are nowadays thoroughly enmeshed with Aboriginal traditions and it is often
difficult to tell where one tradition leaves off and another begins. He sees an internal dialogue as
required, and as emerging, in many Aboriginal communities, involving people from the many
diverse sectors (youth, women, administrators, native spiritualists etc.) and notes that these
'community conversations' can lead to Aboriginal communities developing their own cultural
possibilities within present organizational arrangements.
McEvoy, R. "Review of Bruce Clark's Native Liberty, Crown Sovereignty: The
Existing Aboriginal Right of Self-Government" in Journal of Law and Society, vol. 7,
1992
McEvoy examines Clark's argument that the time for self-government has arrived and that there
should be constitutional recognition of the entrenched right. The claim goes back to the royal
proclamation of 1763. The right is deemed to be pertinent to civil more than criminal jurisdiction
because of subsequent legislation in 1803 and 1821. McEvoy notes that the words used in the
1763 proclamation refer to possession, and not being molested or disturbed rather than to any
right to self-government. As well it is noted that the right to self-government may not carry any
federal obligation of financial support.
32
McNamara, Luke. "Aboriginal Justice Reform In Canada: Alternatives To State
Control" in Perceptions of Justice. Winnipeg: Legal Research Institute, University of
Manitoba, 1995
McNamara refers to the 1975 National Conference on Native Peoples sponsored by the
Ministry of the Solicitor General Canada as the landmark conference setting the stage for
Aboriginal justice reforms for the next 15 years. During those years more than 20 reports
identified a similar 'top ten' list of recommendations, chiefly greater Aboriginal access to and
participation in the criminal justice system, and more emphasis on cross-cultural training and
crime prevention. It was an integrationist orientation though there was often a call for studying
how self-determination might be achieved. Since 1990 there have increasingly been calls for a
new direction, one where emphasis is given to the establishment of Aboriginal justice systems
(e.g. Law Reform Commission of Canada, 1991; Report of the Aboriginal Justice Inquiry of
Manitoba, 1991). Indeed in the 1990s the constitutional reform movement which would have
provided a constitutional amendment recognizing the right of Aboriginal self-government, and
which was backed by the government and the major political parties, was narrowly defeated in
national referendum on the Charlottetown Accord. Regional self-government agreements have
provided significant formal self-government within the existing constitutional framework.
McNamara stresses the need for formal realization of the inherent right of Aboriginal selfgovernment since "meaningful autonomy must include the right to define justice and to adopt and
apply laws and processes consistent with this definition".
Merry, Sally Engle. Getting Justice and Getting Even: Legal Consciousness Among
Working-Class Americans . Chicago: University of Chicago Press, 1990
This book provides a very interesting analysis of mediation in the United States. Merry
discusses the mediation movement and the different system of discourse that characterizes it visà-vis the mainstream justice system. Her analysis focuses largely on the court-affiliated
mediation system. She describes the complex nature of most incidents (often civil and criminal
elements are thoroughly enmeshed) that get directed to mediation. In general, Merry contends
that most complainants directed to this channel of redress prefer the mainstream justice route
and want to end a relationship not reconstruct it. The bulk of mediation cases involve relatively
ordinary if not disadvantaged women as complainants.
Merry, Sally and N. Milner (eds.). The Possibility of Popular Justice. Ann Arbor:
University of Michigan Press, 1993
This is a collection of excellent essays on popular justice with an useful introduction by the coeditors.
Monture-Okanee and M.E. Turpel. "Aboriginal Peoples and Canadian Criminal Law:
Rethinking Justice" in U.B.C. Law Review, vol. 26, 1992
These authors emphasize that in re-thinking justice for Aboriginal peoples it must be appreciated
that there is no singular answer or Aboriginal system, but rather there are myriad possibilities
33
associated with the diversity of experience, geography, and culture of Canada's Aboriginal
peoples. As Aboriginal communities develop ideas and initiatives about justice it is important,
the authors argue, that these be treated with respect by non-Aboriginal peoples and the
mainstream justice system. In their words "Justice requires a legally based commitment to
cultural diversity and Aboriginal collective rights to determine our own destiny ... Justice must
mean justice as understood by Aboriginal peoples and not only as conceptualized by nonAboriginal Canadians".
Morse, Brad and Linda Lock. Native Offenders' Perception of the Criminal Justice
System. Ottawa: Department of Justice, 1988
Murphy, C. and D. Clairmont. First Nations Police Officers Survey. Ottawa: Solicitor
General Canada, 1996
This report deals with a nation-wide survey of police in Canada's Aboriginal communities. Over
60 percent of all front-line officers policing in these communities completed the survey. The
police were attached to one of the five following organizational structures, namely RCMP,
'stand-alone' independent Aboriginal police services, OPP-affiliated Aboriginal police, SQaffiliated Aboriginal police, and band constables. The objectives were to provide baseline data
on field-level policing in Aboriginal communities, to compare the perceptions, values, concerns
and policing styles of officers attached to the different organizational structures, and to analyse
specific issues such as stress, job satisfaction, the impact of cultural values/identity and so on. In
general the officers indicated a commitment to both conventional, reactive policing and to
community-based policing, a modest level of job satisfaction, concern for further training of all
sorts, and special problems dependent upon organizational attachment. The authors recommend
a dual path of development, encompassing both conventional police craft and community-based
policing and problem-solving.
Nahanee, T. "Dancing with a Gorilla: Aboriginal Women, Justice and the Charter" in
Aboriginal Peoples and the Justice System. Ottawa: Royal Commission on Aboriginal
Peoples, 1993
Nahanee addresses the basic requirements of a parallel Aboriginal justice system from a female
perspective. She argues that two powerful driving forces which will shape Aboriginal criminal
justice administration are: (1) the widespread victimization of women and children in Aboriginal
communities, and (2) the 30-year struggle by Aboriginal women for sexual equality rights in
Canada. She stresses that women have to be involved in the consultation process for a parallel
Aboriginal justice system and points to their success in securing an unanimous ruling by the
Federal Court of Appeal to that effect in 1992. She also cites the outrage Aboriginal women
have expressed regarding the leniency of sentencing in cases of wife assault, sexual assault, and
child abuse. Nahanee discusses the many reasons for under-reporting and denial by Aboriginal
female victims: cultural considerations, fear of losing children, and control of service agencies by
male leaders. She thrashes the so-called cultural defence occasionally used in court by
Aboriginal males to excuse this kind of violence and is skeptical concerning restorative justice
practices, such as the use of elders' circles, unless there is a genuine return to traditional ways
34
and a sharing of power between men and women. The traditional system, for many Aboriginal
peoples, was not patriarchal.
Nahanee is very critical of both the federal and provincial governments' failure to clarify
jurtisdictional issues that could ensure appropriate rights and living conditions. She directs much
of the blame for the high level of victimization of Aboriginal women and children to colonialism
and the residential school experience, to Christianity and its values, and to racism. In her view,
progress will require clear federal initiatives and changes among the male leadership in
Aboriginal communities. She notes that Aboriginal women have embraced individual rights
found in the Canadian Charter because it aids their struggle for sexual equality and sexual
freedom. The dominant Aboriginally-sensitive political theory has argued that soverenity would
put Indian governments outside the reach of the Charter of Rights and Freedom. Allied with that
position has been the male Aboriginal leadership's argument that Aboriginal governments must
be established and recognized first, then sexual equality would follow. Nahanee contends that
the Charter has "turned around [Aboriginal women's] hopeless struggle". Recent federal court
decisions, as well as the defeat of the Charlottetown Accord, have flowed from the Charter and
require that women must have a voice in determining whatever kind of criminal justice
administration develops in Aboriginal communities.
Nielsen, Marianne. "Criminal Justice and Native Self-Government" in Robert
Silverman and Marianne Nielsen (eds.). Aboriginal Peoples and Canadian Criminal
Justice. Toronto: Butterworths. 1992
Here Nielsen discusses the characteristics of traditional Aboriginal justice (e.g. woven into
society, flexible, situational, welfare and harmony of the group emphasized, etc.), most of which
follows deductively from these traditional societies being small, economically interdependent
kinship-based units, rather than from any empirical evidence. Using Black's categories she labels
that traditional system's thrust as conciliatory more than penal, therapeutic, or compensatory;
further, she argues it was a rational system featuring consensus and mediation rather than one
dependent upon prayer, contests, and the like to effect justice. She thinks that much of this
traditional justice is very appropriate in current and future society and is optimistic about its
contribution to a new and better justice system. Still she does caution that Aboriginal values may
have changed too much with modernization; that the basis of the traditional system, such as
shaming, may be ineffective in the socially and geographically mobile, modern Aboriginal
community; that community cohesion and deep value sharing may be problematic; and, finally,
that there will undoubtedly be jurisdictional issues and conflicts between Aboriginal and
mainstream justice systems.
Nielsen, Marianne. “Native Canadian Community Sentencing Panels: A Preliminary
Report”, paper presented at the American Society of Criminology Annual Meeting,
Miami, 1994
Noting that new Aboriginal criminal justice initiatives are linked to self-determination and
founded on the principles of community-level control and the incorporation of traditional
35
Aboriginal justice practices, Nielsen focuses on one such initiative namely youth justice
committees (and their constituent sentencing panels), about 40 of which have been established in
Alberta beginning in 1990. She used some participant observation, and both in-person and
telephone interviewing of justice committee members, police, and Justice officials. Nielsen
described the sentencing panels as "a committee of community members who assist a judge by
making sentencing recommendations". The goals, according to her interviews, include increased
community involvement, healing for all parties concerned, and reducing recidivism. Youth
justice committees operating in this fashion are well within the rules and guidelines of the Young
Offenders' Act. In 1994 the Alberta Department of Justice issued guidelines for such sentencing
panels for both Aboriginal and non-Aboriginal communities. A limited number of communities
have committees that have been formally sanctioned by the province, and where that is the case
(i.e. formal provincial sanction) the province and police offer some developmental assistance.
Membership and recruitment vary, ranging from exclusively elders (i.e. members of the
grandparent generation) to mixed ethnic, age, and gender groupings. All members are expected
to be good role models, knowledgeable about community resources, comfortable with a
consensus / mediation approach and, where Aboriginal, informed about traditional ways.
Offender eligibility criteria vary but in all cases the offence cannot be serious assault. In the basic
model the sentencing panel comes into play after the offender has been found guilty. The
sentence panel is held in private, consensus reached, perhaps some reintegration occurs, if only
hugs, and then a written recommendation is subsequently sent to the judge. As a variation of this
basic model there may a pre-court diversion model (i.e. bypassing the court system), something
favoured by many advocates as more efficient and more empowering to the community.
Sentencing circles along the lines of those happening in the Yukon (see “R. v. Moses” below)
were uncommon, if at all extant. The sentences in this Alberta program are non-incarceral and
usually similar to community service orders, sometimes with an imaginative angle. The offender
and his/her family must agree that the sentence is fair. The judge accepts the recommendations
and, in fact, according to Nielsen, in the two cases taken to appeal because the judge did not,
the recommendations of the sentencing panel were upheld.
Nielsen contrasts sentencing panels and the 'euro-based' system in the usual way, comparing
their objectives, styles, and so forth. She discusses the myriad of factors contributing to or
detracting from the legitimacy or acceptance of this new sentencing initiative. She raises the
question why such a different process would be grafted upon the conventional mainstream one
and even be so accepted by the latter's officials (e.g. police, judges) but she neglects to note
here that such sentencing panels are consistent with YOA ideas and also meant to increase
respect for the mainstream justice system, considerations which suggest compatibility and
symbiosis between these initiatives and that justice system.
Nightingale, M. Just-Us' and Aboriginal Women. Unpublished paper. Ottawa:
Department of Justice, 1994
Nuffield, Joan. Diversion Programs for Adults. Ottawa: Solicitor General Canada,
1997 (also available on Internet homepage @ www.sgc.gc.ca)
36
This report reviews evaluated programs to divert adult offenders from further involvement with
the criminal justice system. The author focuses on those projects where the intention was to
address offenders' risks and needs through program intervention. The review is organized in
terms of the stage in the criminal process where the diversion occurs: pre-charge diversion,
deferred prosecution, diversion at the sentencing stage, and post-incarceral programs. The
author neglects evaluated diversion programs in Canada's Aboriginal communities, and makes
up for the overall paucity of relevant Canadian material by referring extensively to American
sources (as well as a few European program evaluations), and also to programs directed at
youths.
In general, she concludes that the evaluations were inadequate in that they were overly
descriptive of the process and provided little detail regarding implementation or effects. Control
groups were seldom part of the evaluation design. In the pre-charge diversion programs (e.g.
cautioning) the author found wide and unjustified disparities within and between offences and
police forces; the treatments were seldom more than a lecture, and effects often were counterproductive. Deferred prosecution, where proceedings were suspended for a specific time
pending the defendant's undertaking some kind of program (e.g. drug therapy, employment,
etc.) and subsequently referred back to the prosecution for a decision whether to withdraw
charges or proceed, was found to be widespread and sometimes effective. At the same time
few cases were subject to deferred prosecution, and these were often cases that would have
been dismissed or given a suspended sentence. The program intervention was frequently so
short-term and modest that significant positive effects were unlikely. Diversion at the sentencing
stage often took the form of alternate sentence planning programs where a client-specific plan
was developed and submitted to the court. Insofar as the court accepted the plan, the offender
usually received probation and of course was expected to follow the plan. Evaluations of the
post-conviction diversion programs typically indicated a positive impact (e.g. less recidivism.
less serious re-offending). The author refers to few adult post-incarceration programs, none of
which received particularly positive evaluations.
The author concludes that if diversion is to be effective the specific program interventions will
have to be better developed and more appropriate to offenders' risks and needs, and diversion
will have to be utilized in more serious cases which justify more intensive treatment.
37
Oates, Maurice Jr. Dealing With Sexual Abuse In A Traditional Manner. Prince
Rupert, B.C., unpublished manuscript, 1988
This monograph is written by an Aboriginal psychologist and focuses upon the active
intervention of the community. It criticizes the way sexual abuse is now handled – the way it is
reported, the procedures followed, the disposition rendered – as reflecting a legalistic approach.
He argues for focusing on the harm that has been done and the best way to repair the damage.
Emphasized are truthtelling, identifying the needs of all concerned, establishing forums for
emotional release and as support groups, and developing means for repentance and reparation.
The author argues that in Aboriginal culture no one was considered 'unchangeable', that
deviance or 'crime' was deemed a situation where a person was 'out of balance', and that
healing was effected in an holistic manner. He emphasizes dealing with sexual abuse within the
extended family rather than through police, external agencies, etc. which is now the legally
required way to proceed. He recommends what might be called a diversion program where the
offender plus some supporter or ally meets with a trained Aboriginal sexual abuse coordinator
and also with extended family members and/or elders. The offender has to accept full
responsibility and cooperate or the case is referred to the conventional legal system. The
conclusion of the alternative process, in his model, is a reparation feast. In effect what he
describes is very similar to what nowadays is called family group conferencing.
The author lists some 17 features of the traditional process – disclosure, confrontation,
protection, support groups, the extended family gathering, the ceremonials, the consensus
solutions, etc. As he spells out these features, he allows for interaction with the formal justice
system at various stages, and, in fact, calls for guidelines to be developed to determine what
offences can be handled specifically in this traditional process. Again for the most part what is
described is something similar to the Hollow Water model.
Phyne, John. "A Critique of the Panoptican Thesis", International Journal of Sociology
and Social Policy, 12, 1992
Here there is the argument and evidence against the theory that alternative justice programs
contribute to increased state surveillance (e.g. net-widening).
"R. v. Moses", 11 Crim. Rep. (4th) 357 (Yukon Terr Ct); also reprinted in the text
Dimensions of Criminal Law, 1992
This is the classic case which has defined the circle sentencing principles and procedures in the
Yukon. The offender, who had a long history of substance abuse, violent acts, and
incarceration, had committed an assault with a bat on an officer, thieved, and breached
probation. He was found guilty on these charges. The disposition was non-incarceral but multistage and involved family support, isolation, counselling, etc. Apparently the resort to the circle
sentencing format was rather spontaneous, occasioned by many officials believing that the whole
situation from a conventional justice-response perspective was self-defeating and likely to
worsen things. A case is made for the circle's physical arrangements and the circle dynamics
(e.g. speak while sitting, use personal names not titles, all persons within the circle must be
38
addressed, anyone in the circle may ask a direct question of anyone else there). The advantages
of circle sentencing are claimed to include greater lay participation, creative new solutions,
involving victims, extending the focus of the criminal justice system to look at the causes of
crime, mobilizing community resources and partnership, and merging values between first
nations and provincial and federal governments. This is a complex document which deals at
depth with the issues raised by the inventive approach used to sentence an Aboriginal person.
Roberts, Julian and Carol LaPrairie. "Raising Some Questions About Sentencing
Circles", Criminal Law Quarterly, 1997
The authors indicate that their focus is on the utility of sentencing circles to the non-Aboriginal
culture, indicating that their application in Aboriginal culture raises other issues that go beyond
the scope of the paper. At the same time, in assessing the utility of sentencing circles, they
basically put forth criteria and then assemble evidence drawn almost exclusively from the
Aboriginal experience since there is no other experience to draw upon. They contend that while
extravagant claims have been made about Aboriginal sentencing circles in terms of reducing
recidivism and crime, supporting evidence is non-existent. Further, they argue that Aboriginal
sentencing circles have had a negligible impact on the reduction of incarceration, and in fact,
Aboriginal incarcerations significantly increased in the Yukon Territories and Saskatchewan
between 1990 and 1995 despite the large number of circles that took place in these two
regions. They argue that sentencing circles run counter to the 'Just Deserts' theory of punishment
(where punishment is proportional to the seriousness of the offence) since individual
circumstances are emphasized, a fact that raises many questions for equity, a basic principle of
Canadian sentencing policy. In their view sentencing circles, by representing a return to highly
individualized sentences, could possibly be seen as a retrograde step. They call for rigorous
examination of results to replace "anecdotal evidence" and "extravagant claims". Clearly, despite
their disclaimers, this paper is a major critique of sentencing circles in Aboriginal communities.
Perhaps, by their disclaimer, the authors are acknowledging that a complete assessment of
sentencing circles in Aboriginal communities would also have to take into account their impact
on community development and the extent to which they have fostered other goals such as
collective responsibility, self-government, and so forth.
Ross, R. Dancing With a Ghost: Exploring Indian Reality. Markham: Octopus
Publishing Group 1992
This book is based upon a provocative paper written by Ross in 1987 where he speculated
upon his experiences with Aboriginal peoples in the justice system, discussing an Aboriginal
'way', a traditional ethos. Non-confrontation, avoidance of a show of emotion or being critical
of others, use of parables rather than direct orders or statements, and so forth are components,
he argues, of a different, Aboriginal cultural style. He explores the thesis that retention of this
cultural style, this ethos, in the radically different modern societal context may be a major reason
for present-day problems in Aboriginal communities. He suggests that individuals may not have
"the tools" to deal with all the current critical turmoil that modernity has effected (e.g. the whole
essence of community has changed), something which explains the necessity of an alternative
39
justice system that encourages people to 'open up the heart', that encourages healing and getting
/ restoring balance.
Ross, R. Duelling Paradigms: Western Criminal Justice Versus Aboriginal Community
Healing. Ottawa: Aboriginal Justice Directorate, Department of Justice. 1993
Ross contrasts Aboriginal traditional justice practices and the mainstream justice system. He
argues that insofar as there are to be Aboriginal alternatives, then these interventions should be
Aboriginal-based, involving community control and healing principles, and focusing on serious
familial and interpersonal violence which is a major problem in many reserves. He contrasts
sharply this type of 'healing' intervention which he sees in the famous Hollow Water program,
with initiatives on reserves such as Sandy Lake and Attawapiskat where the offences
considered are modest and the program is basically an appendage to the regular court system, a
case processing approach in his view. Ross compares these 'healing' and 'case processing'
approaches on a variety of practical issues such as the successful involvement of elders. While
calling for the former (i.e. the healing approach) as the major "intervention or alternative"
strategy in Aboriginal society, Ross also refers to the need for (and participation of) trained and
independent professionals or para-professionals who can command community support.
Ross, Rupert. Returning to the Teachings: Exploring Aboriginal Justice. Toronto:
Penguin, 1996
This book continues Ross' insightful exploration of the Aboriginal ethos and perspectives on
justice. It aims at filling a void in discussions of how Aboriginal perspectives may indeed be
quite different from those underlying the mainstream system, and particularly suited to the chief
social and justice problems facing Aboriginal peoples today.
Saskatchewan Justice. Sentencing Circles: A Discus sion Paper. Regina: Policy,
Planning and Evaluation, Department of Justice, Saskatchewan, 1993
This discussion paper addresses the use of sentencing circles in Saskatchewan, noting that there
has been some such experience in the northern part of the province and that a major theme in
Aboriginal justice has been making the sentencing process more relevant and appropriate for
Aboriginal people. The paper suggests that the idea of a sentencing circle might itself be seen as
the imposition of a foreign idea on Aboriginal people, as suggested by some scholars and
observers who contend that the traditional system emphasized non-interference and avoided
confrontation and allocation of responsibility. The paper notes that the idea of having a
sentencing circle has, in practice, been deemed relevant only after a finding of guilt has been
made, and has been advanced sometimes by judges and sometimes by others such as defence
counsel. Review of court experience to date indicates that the purpose of sentencing circles is to
shift to sentencing principles other than retribution, and to involve the victim and the community.
Other factors affecting the issue of the appropriateness of utilizing sentencing circles include the
seriousness of the offence (e.g. where the conventional sentence would be less than two years in
prison), the willingness of offenders and the community to participate, the ability to involve the
40
victim directly or through representations, and the attitude (i.e. contriteness) of the offender.
Clearly, each case would have to be decided on its merits and, as the authors note, one impact
of this individualized approach may well be increasing disparity in sentencing, thereby raising the
issue of equity.
The paper raises issues such as who is responsible for investigating the potential for the Circle,
for handling its arrangements (the authors think there should be an objective service provider
here), how does one identify 'the community', who should attend and what should their role be,
what is the process to be followed in the actual sentencing circle (e.g. sitting arrangements,
judge presiding, introductions, prosecution and defence sentencing submissions), whether the
judge's final decision is seen as informed by the discussions or as directed by the group
consensus, what if any rules apply with respect to perjury, slander, etc. Finally, the paper notes
that for evaluation purposes, considerations include the resources required, and the impact on
the victim, the community, and the offender. A prior consideration is agreement on the aims of
sentencing circles.
Saskatoon Community Mediation Services. Restorative Justice: Four Community
Models. Saskatoon: Department of Justice, 1995
This paper reports on a restorative justice conference held in Saskatoon in 1995. The purposes
of the conference were "to listen to Aboriginal perspectives on restorative justice", to find out
what interesting developments are occurring in different social contexts (Aboriginal, Australia,
New Zealand, Japan), and to examine issues in victim-offender mediation. Several Aboriginal
presenters expressed scepticism about the mainstream society's responsiveness to restorative
justice. One Aboriginal person argued that healing and an holistic approach are central to the
Aboriginal perspective, while a female presenter contended that Aboriginal women are pivotal
to developments in the Aboriginal community – "if you see any Aboriginal justice project that
doesn't centrally involve the women, then you're not looking at real justice". Sentencing circles
were discussed by several presenters and generally seen as representing a positive step and
considerable improvement over existing mainstream justice practices. One judge contended that
"if you involve the community ... you open up the possibility of forgiveness and reconciliation so
people can get on with their lives. In small communities this is absolutely critical". The Australian
and New Zealand versions of family conferencing were also discussed. Successes were noted,
as were Aboriginal influences and the parallels with Canadian Aboriginal sentencing circles. The
Japanese system of restorative justice was seen as similar in many ways (e.g. an emphasis on
harmony, healing, and the local community) to Aboriginal justice initiatives.
Sentencing Team, Crime and Public Policy Sector, Justice Canada. Intermediate
Sanctions. Ottawa: Department of Justice, 1992
Here it is noted that Bill C-90 articulates the principle that "all available alternatives to
imprisonment that are reasonable in the circumstances should be considered, particularly in
relation to Aboriginal offenders". In reporting on the last round of consultation for this document
the authors note that "there was general support to find ways to involve Aboriginal communities
41
in the sentencing process. There was concern that the current system has too many legal
obstacles. It is important to bring criminal justice closer to Aboriginal communities".
Stuart, Barry. "Sentencing Circles: Purpose and Impact". National: The Canadian Bar
Association Magazine , 1994
Stuart, a judge, has been credited with implementing the first modern-day sentencing circle in
Canada. Here he emphasizes that such interventions, such as sentencing circles, can empower
community members to resolve their own issues and, in that way, restore a sense of collective
responsibility. Circle sentencing, in his view, "improves the capacity of communities to heal
individuals and families and ultimately to prevent crime". It offers opportunities for all members
to better understand the causes of crime and to work together to remove conditions fostering
criminal behaviour. Stuart's approach is a pragmatic rather than a legal or a political position on
Aboriginal systems of justice.
Stuart, Barry. Building Community Justice Partnerships: Community Peacemaking
Circles. Ottawa: Department of Justice, Aboriginal Justice Learning Network, 1997
This is an interesting, detailed case for, and outline for initiating, community peacemaking circles,
by a judge who has been one of the leading advocates and initiators of this justice system
development in the Yukon Territory. Stuart focuses on community court circles which entail
much community involvement, as opposed to sentencing circles which he defines as courtinitiated courtroom circles. He discusses the principles of the circle process (especially
distinctive is the focus on holistic healing), the participants (circles differ from the mainstream
system in emphasizing equal opportunity and respect for all participants), and the operating
philosophy ("community development is as central to the work of circles as community justice").
In discussing the maintenance of community justice initiatives that spawn circles, Stuart
emphasizes the importance of a number of factors including community support, volunteers, and
evaluation. In the latter case he stresses the importance of internal evaluations that get at the
secondary impacts of community peacemaking circles (e.g. reduced interpersonal conflict).
Stuart makes it clear that community peacemaking circles are more than sporadic, spontaneous
events occasioned by a particular judge. He stresses the essential role of a community justice
committee which receives applications for circles and which channels cases to a variety of
options. Also emphasized are key community roles such as 'keeper of the circle', the occupant
of which has significant responsibilities for organizing the circle and guiding its implementation in
a specific case. Pre-circle preparation is deemed to be very important for the success of
community court circles as are training courses (for professionals as well as for volunteers) and
public meetings. In a long chapter on the circle hearing he informs the reader as to issues of
logistics, consensus building, and spirituality, and describes the hearing in terms of seven stages
(e.g. opening the circle, legal steps, closing the circle). In an appendix to the text Stuart provides
an example of such an initiated program from his Yukon experience.
Stuart contrasts the circle innovation with the mainstream system which he says "doesn't work".
He is very positive about the circle initiatives, arguing that they produce reduced recidivism,
42
community development, and improved justice delivery. A number of "myths that act as barriers
to community justice" are identified including the myth that only professionals can be effective,
and the myth that such justice programming can only work in small, homogeneous communities.
Throughout the monograph Stuart exudes humility and openness to alternative processes. He
does appear somewhat more combative on the issue of evaluation and especially towards the
media and academic researchers who, in his mind, are quick to disparage community justice on
the basis of too narrowly conceived performance indicators such as recidivism.
Tavuchis, Nicholas. Mea Culpa: A Sociology of Apology and Reconciliation. Stanford
University Press, California, 1991
Tavuchis provides an interesting and in-depth analysis of apology, a key dimension of
restorative justice and often deemed a requisite to an offender's successful rehabilitation. He
contends that apology is essentially a social exchange. It begins with "the knowing and wilful
violation of a mutually binding norm that defines those affected as members of a moral
community". In all societies there are socially patterned and objectified definitions of what
constitutes an apologizable offense and how one is expected to speak to it. Apology can come
in many modes, and the author discusses the "many to one", the "one to many", and the "many
to many" modes. In Canadian society examples readily come to mind of all these forms (e.g. the
"many to many" form is seen in the government's apology for the abuse of residential schools).
Tavuchis describes these modes of apology largely in relation to Western civilization, but he
does offer some contrasts with Japanese culture. He argues that there is a three-phase, universal
dynamic to apology. First, there is the wrongdoer's responsiveness in terms of sorrow.
Secondly, there is explicit acknowledgement by the offender which entails taking responsibility
for the action, expressing sorrow, and seeking forgiveness from the offended party. Thirdly, the
loop is closed by the forgiveness of the offended, which symbolizes reconciliation and allows the
resumption of normal social relations.
Tavuchis stresses the humanizing and civilizing potential of apology for individuals and
institutions. At the same time he observes that "there are acts in the moral spectrum that are
beyond forgiveness, individual and collective actors apparently impervious to sorrow, and
institutional imperatives that can effectively silence such speech". Apology, he holds, is a learned
phenomenon and therefore it is important to ask in any society, "to what extent is an
appreciation of the remedial aspects of apology cultivated in different social environments, such
as family and peer groups". Clearly, it would be very appropriate to ask to what extent such
cultivation of apology is a central dimension of justice processes in modern society.
Turpel, Mary Ellen. On The Question Of Adapting The Canadian Criminal Justice
System For Aboriginal Peoples: Don't Fence Me In. National Round Table On
Aboriginal Justice Issues, Royal Commission on Aboriginal Peoples, Ottawa, 1993
In this paper prepared for the National Roundtable on Aboriginal Justice Issues (Royal
Commission on Aboriginal Peoples) Turpel discusses the general issue of whether the Canadian
Criminal Justice System can be adapted for Aboriginal people. She emphasizes that there are
differences in value-orientations, principles, and strategic directions between Aboriginal peoples
43
and their traditional systems on the one hand and the Canadian system on the other. At the same
time she considers the impact of the destruction caused by colonialism and oppression, and also
the diversity among Aboriginal peoples. She stresses differences between Aboriginal and
mainstream systems that exist on a variety of fundamental Justice principles, and emphasizes the
Aboriginal focus on harmony, healing, and consensus. She argues that dual respect of
differences (and rights) should be the theme of future Justice considerations and collaboration,
and holds that a single inclusive model will be problematic, especially outside urban areas.
Webber, Jeremy. "Individuality, Equality And Difference: Justification For A Parallel
System Of Aboriginal Justice" in Aboriginal Peoples and the Justice System. Ottawa:
Royal Commission on Aboriginal People, 1993
Webber deals with the moral and everyday rationalization for a parallel Aboriginal justice
system vis-à-vis Canadian concerns for fairness, equity, commonness and so forth. He sees
Aboriginal justice as a matter of roots, context, and identity. He deals with several possible
objections to an autonomous Aboriginal system. In discussing concerns about the protection of
individual liberty, Webber observes that undoubtedly there would be the possibility of optingout, and the Charter of Rights and Freedom would protect certain rights. On another possible
objection, namely the legitimacy of authority, Webber contends that concern would be about
institution building at the community, band or First Nation level. and the question of whether
Aboriginal societies lack the safeguards which non-Aboriginal Canadians consider important.
Here he argues for a reinvention of tradition appropriate to the new societal Aboriginal
circumstances which may, for example, require inventing checks to prevent abuse which were
unnecessary hundreds of years ago. He contends that any Aboriginal system will have to pass
some standards for effectiveness and lack of corruption. On equality and commonness, Webber
notes that since some basic standards are essential to the continued cooperation of Aboriginal
and non-Aboriginal peoples, there would need to be some consistency in minimal standards of
conduct upheld by the criminal law or other means. Webber emphasizes that he is not
suggesting that a completely separate Aboriginal justice system is essential or even desirable.
Zimmerman, Susan. "The Revolving Door of Despair: Aboriginal Involvement in the
Criminal Justice System", U.B.C. Law Review, Vol. 26, 1992
This is a well-written, comprehensive overview of Aboriginal involvement in the Canadian
Justice System. The author, affiliated with the Law Reform Commission of Canada at the time,
carried out the study in conjunction with the Manitoba Inquiry on Justice and Aboriginal
Peoples. She provides a brief factual description of Aboriginal involvement in the criminal justice
system, along with some policy discussion and extensive recommendations, for each stage or
level of the justice system, from policing to parole and aftercare. At each step it is clear that
Aboriginal people are disadvantaged if not discriminated against. In general, the main thrust of
the paper is advancing recommendations for a more equitable Canadian justice system for
Aboriginal peoples, and the main theme is the call for more governmental funding (i.e. human,
material, and program resources) and more Aboriginal control over and direction of these
resources. The author acknowledges that such recommendations can be characterized as mere
44
"tinkering" and falling far short of "the aspiration of Aboriginal peoples to assert control over
their lives and destinies", something she strongly supports as a long-run objective.
The paper represents well the conventional, progressive non-perspective on Aboriginal peoples
and the Canadian justice system. But analyses are limited (e.g. what is the role of socioeconomic status?) and few hard choices are made; for example, in referring to the debate over
whether in corrections the emphasis should be on cross-cultural training of non-Aboriginal staff
or the hiring of Aboriginal staff, the author's solution is "more of both". Moreover, the article
could not take into account justice system developments of the 1990s including the development
of diversion and of sentencing circles, as well as the indigenization and increasing Aboriginal
administration of policing across Canada. Still, it is a fine article and two points in particular
should be noted. The author observes that the responses of Aboriginal participants during the
Law Reform Commission consultations emphasized the need for respect for Aboriginal values
and customs, and for their having ownership of the system of laws which govern them.
Additionally, she notes that community involvement (and by implication, community
development in all respects) is central to the success of Aboriginal justice alternatives.
45
PART B
EVALUATIONS, MANUALS AND PROGRAMS
46
Aboriginal Corrections Policy Unit (eds.). Community Development & Research.
Ottawa: Aboriginal Peoples Collection, Solicitor General Canada, 1995 (also available
on Internet [email protected] www.sgc.gc.ca)
This monograph is the result of an intensive two-day session focused on community
development and research in relation to justice issues in the broad sense and especially relating
to Aboriginal corrections. The consultation was held in Ottawa August 25-26, 1994 under the
auspices of the Aboriginal Corrections Policy Unit of the Solicitor General. The purpose was to
assist in the preparation of a community development manual which Aboriginal people would
find useful in furthering communities' effective and efficient initiation of justice and corrections
projects. All phases, from resource mobilization to securing funding to having evaluations carried
out, were considered. A number of Aboriginal communities were represented as were some of
the more well-known Aboriginal justice projects (e.g. Hollow Water). There was much
discussion of how research fits in, how it can be participatory, entail some community
ownership, be a positive force for community development, and what should be in a protocol
guiding the evaluative research.
Some basic themes of community development are detailed including developing a capacity to
self-direct, integrating past and present customs and practices, and involving all members. The
complexity and mutual requirements entailed in the government-community relationship were
highlighted. The Community Action Pack (Health Canada) was deemed to be a useful kit for
communities wanting to act on problems and refers to all aspects from running a meeting to
evaluating results. There was much concern too about the lack of community involvement in
developing research projects and new styles of research were called for such that participation
and community empowerment results. There was consensus that research funding should include
money for the development of proposals in order to respond to the Aboriginal view that money
is available for research but not programs. A large section of the report is devoted to how a
community might undertake a research project – reasons for the project, specific objectives,
establishing a committee, informing the community, using consultants and outside resources, etc.
There is a useful checklist for developing community projects and also a comprehensive list of
funding sources (i.e. funding programs that might be accessed).
Aboriginal Corrections Policy Unit (eds.). The Four Circles of Hollow Water. Ottawa:
Solicitor General Canada, 1997
See annotation in Part A.
Aboriginal Justice Directorate. National Inventory of Aboriginal Justice Programs,
Projects and Research. Update. Ottawa: Department of Justice, 1992
This document provides a detailed listing of Aboriginal justice programs, projects and research
as of 1992. It lists these more than 400 items by federal department (Justice, DIAND, Solicitor
General, Other) and also by province and territory. In each instance there is specification of the
delivery agency, the purpose of the project, its target groups, funding arrangement, contact
person, and starting and completion dates. The projects cover the entire spectrum of justice
48
concerns from family violence, alternative measures for youth, to training for special constables.
In addition there is an executive summary and useful updated socio-demographic and crime and
corrections data for each province and territory as well as for Canada as a whole.
Aboriginal Legal Services of Toronto. Community Council Reports, Quarterly
Reports, 1993-1995, Toronto
Aboriginal Legal Services consists of a courtworker program, an Aboriginal legal aid clinic, a
training program for court workers, an inmate liaison program, and a diversion program. This
latter intervention diverts adult Aboriginal offenders in Toronto before their cases get processed
in court. The protocol established with the federal and provincial governments is quite broad
excluding only the most serious offences and incidents of family violence. In most respects the
program is quite similar to other major Aboriginal adult diversion programs (e.g. Indian Brook,
Nova Scotia) in terms of protocol, selection of panel members, post-charge referral, format of
the hearing, minimum involvement of victims, types of dispositions, budget level, and pivotal
status of crown prosecutor. It differs in having a broader eligibility for offences, in its handling of
cases where the disposition is not completed, in the pattern of offences dealt with (primarily
theft, prostitution, and court offences), and in its aggressive advocacy and pursuits of cases for
diversion. Extensive data are systematically compiled on the socio-demographic characteristics
of clients, type of offences involved, dispositions rendered, completion rate, and recidivism. It
has been one of the most successful Aboriginal adult diversion programs initiated in Canada.
Arnot, David. "Sentencing Circles Permit Community Healing". National: The
Canadian Bar Association Magazine , 14, 1994
This paper presents a strong argument for Justice interventions such as sentencing circles which
can both assist community healing (something rarely achieved under conventional sentencing
practices) and restore a sense of ownership (and 'tradition') to Aboriginal peoples. Arnot holds
that sentencing circles have fostered a revitalization and self-worth in the individuals who came
before the circles and "revitalized a collective pride in Cree communities in the area".
B.C. Coalition For Safer Communities. An Elaboration Of Community Needs In Crime
Prevention. Vancouver: The B.C. Coalition For Safer Communities, 1997
This report provides an overview of the concerns and needs, with respect to dealing with crime
and related social problems, of a sample of communities across Canada. Focus groups were
held (utilizing a common discussion guide) and relevant statistical information gathered for
twenty one communities, three of which were first nation communities. Common themes that
emerged included a desire for more detailed information on crime and social factors in local
communities, the need for more resources to be designated for basic socio-economic
development and conflict resolution, and the view that crime prevention should be seen in a
much broader sense than is usually the case.
49
Bopp, Judie and Michael Bopp. Responding To Sexual Abuse: Developing A
Community-Based Sexual Abuse Response Team In Aboriginal Communities. Ottawa:
Solicitor General Canada, Aboriginal Peoples Collection - Technical Series, 1997
As the authors note, nowadays almost all Aboriginal communities are struggling with the issue of
dealing with sexual abuse. It is an extensive and serious issue in Aboriginal society and one
where Aboriginal peoples have been dissatisfied with the response provided by the mainstream
justice system and, more importantly, with the approach and conceptualization of the issue in
mainstream society. Increasingly, Aboriginal communities and Aboriginal professionals have
favoured alternatives rooted more in communitarianism, restorative justice, and healing. New
strategies such as community response teams and community wellness programs are also
favoured. This manual has been written "to assist Aboriginal community sexual abuse response
teams (CRTs) to develop ... strategies for addressing the issues of sexual abuse ... [introducing]
the main issues and problems with which CRTs should be prepared to deal". The authors
discuss the understanding of sexual abuse in First Nations communities, the community wellness
approach, care for the caregivers, response to abuse at the time of disclosure, the development
of a community response team, involvement of the community, and legal and administrative
concerns. Resource information is provided on most topics and appendices include a basic
workshop program geared to enable community teams "to engage the material in the manual", as
well as an outline for a two-year sexual abuse worker training program.
The monograph presents a credible account of why sexual abuse became so prevalent in
Aboriginal communities in the post-World War Two era. The authors trace the decline of clear
traditional boundaries and rules regarding sexual conduct to the impact of colonization and its
associated strategies and policies (e.g. residential schools). There is an interesting discussion of
traditional values and traditional teachings on healing. The authors contend that over the past
twenty years in particular an Aboriginal healing movement has emerged which has spawned the
recent effective community-based approaches to the problem of sexual abuse. The movement
has been fuelled by a re-awakening of traditional spirituality, cultural identity, and political
action.
Among the highlights of this reference manual, perhaps the most important, are the discussions
of how to develop community response teams and community wellness programs. The authors
also provide a clear and thorough account of dealing with the critical first phases of responding
to sexual abuse incidents (see At The Time Of Disclosure below). Throughout the monograph
the authors are continuously differentiating and integrating Aboriginal and mainstream
approaches and experiences in relation to sexual abuse and to justice issues in general. They are
cautious in their arguments and in their advice to potential community practitioners. In other
words, they appreciate the complexity of the issues and the need to balance the various
considerations. They emphasize the importance of establishing protocols with the mainstream
justice system and of attention to records and to details in general. A special aspect of the
manual is the considerable attention given to caregivers, with tips to recognize and avoid stress
and burn-out (a very real threat given the intensity and time-consuming nature of the caregiver
role in small, densely-networked communities) and guidelines for their activities.
50
Overall, this is an excellent reference manual for front-line caregivers. Its historical and
explanatory models may be somewhat simplistic but the authors are more interested here in
facilitating community development than in advancing scholarship – though a careful reading
would reward those who have that orientation. This reference manual is well-written, contains a
host of interesting resource materials, good tips and useful procedural information, and succeeds
in its objective "to inform anyone interested in working on the challenge of sexual abuse from a
community-based platform about what is involved in mounting an effective community
response".
Bopp, Judie and Michael Bopp. At The Time Of Disclosure: A Manual for Front-Line
Community Workers Dealing with Sexual Abuse Disclosures in Aboriginal
Communities. Ottawa: Solicitor General Canada, Aboriginal Peoples Collection Technical Series, 1998
This manual is a by-product of the above, more broadly-focused manual prepared by the
authors. The objective here is to focus upon the time of disclosure of sexual abuses in the
community and to assist the front-line community workers in responding effectively to that
situation. The authors reiterate their perspective on traditional Aboriginal societies and sexual
abuse (e.g. that there were strongly held and widely shared norms against sexual abuse and little
actual abuse) and the shattering of these normative systems and the effective community
sanctioning as a result of colonization and its associated strategies and policies. They contend
that the terrible state of abuse in Aboriginal communities in the post-World War Two era has
begun to be dealt with as a result of the movements (i.e. spirituality, identity, healing) which have
been impacting on Aboriginal communities since the 1980s. The authors argue that there is now
a clear alternative to the approach followed in mainstream society, one that emphasizes
restorative rather than retributive justice, and wellness rather than sickness. At the same time the
authors acknowledge that both mainstream and Aboriginal approaches have to accommodate
one another, and note that spirituality, healing and restorative justice have strong roots in the
mainstream society. Accordingly, their manual draws heavily on both sources of literature for
definitions, lessons learned, strategies to follow and so forth. Moreover, the authors, while
emphasizing the Aboriginal approach and the achievements attained thus far in local
communities, consistently show a sensitivity to the demands and requirements of the larger legal
system and to the values of impartiality, professionalism and technical competence when dealing
with sexual abuse.
The authors discuss what abuse is, why it is a serious problem, the patterns of abuse, signs of
abuse, guidelines for intervention (especially when dealing with children) and the issues and
needs of the various parties at the time of disclosure. These are all strikingly similar to what one
would describe for mainstream society and indeed the literature cited here is largely nonAboriginal. They also discuss why and how sexual abuse, and especially the response to sexual
abuse, are different in Aboriginal societies. Here they highlight the pervasiveness of the problem,
and the special challenges and opportunities presented by Aboriginal community life. The
preferred model for response advanced in this reference manual calls for the establishment of a
community-based response team and for the development of a community wellness program.
The community response team includes representation from the legal and child protection
51
agencies and represents an integrated and coordinated response involving agents and
perspective from both the local community and larger society. Particular attention is paid to the
stress and burn-out that front-line caregivers and members of the community-based response
team frequently experience. The authors also utilize available Aboriginal materials to highlight
examples of community response teams, and prevention and healing programs that appear to
have been successfully implemented in Aboriginal communities.
The manual should be seen in appropriate context. While the authors' premise that there is an
increasingly pervasive and credible Aboriginal approach or justice movement is valid enough, it
is still the case that few communities are actually implementing the extensive alternative systems
described in the manual. Fewer still are the quality evaluations which examine the extent to
which such intervention strategies as community response teams for sexual assault are equitable
(fair to all community members), efficient (justify the considerable costs and community
involvement required), and effective (achieve wellness for victims, offenders and the
community). It is interesting that the chief source for most of the guidelines, signs of abuse,
issues for the various parties and so forth is a non-Aboriginal handbook published in 1982 (i.e.
Sgroi). It could be said that the development of a better, more Aboriginally-relevant system for
dealing with sexual abuse is just beginning. This reference manual will certainly assist caregivers
and front-line workers in advancing that development.
Burford, Gale and Joan Pennell. Family Group Decision-Making Project:
Implementation Report Summary. St. John's Newfoundland: Institute of Social and
Economic Research, Memorial University, 1996
This report deals with the application of the principles of New Zealand's family conferencing to
cases of family violence, including some sexual abuse cases, in Newfoundland. As a pilot
project the program was implemented in 1993 at three sites, Nain (the home of some 1200
Inuit), St. John's, and Port au Port Peninsula. The report answers numerous questions about the
purpose, procedures, and impact of the initiative. The authors argue that the model is applicable
across cultural boundaries providing there is high involvement of local people in adapting it to
their use. The report deals with commonly raised questions about objectives and implementation
(e.g. typical problems in setting up a family conference, dealing with the possibility of
intimidation, costs, family assessments of the experience). The authors conclude that family
group conferencing is an effective way to deal with violence and sexual abuse without
discounting the seriousness of these problems.
Campbell, Jane and Associates. Evaluation of the Nishnawbe -Aski Legal Services
Corporation. Toronto: Ontario Ministry of the Attorney General, 1994
Campbell, Jane and Associates. Justice Development Workers: Review and
Recommendations . Ottawa: Justice Canada, Aboriginal Justice Directorate, 1995
This paper presents a basic bare-bones review of federal and provincial projects generating
justice development workers in Aboriginal communities. Using a mailed questionnaire the views
of seventeen justice development workers (variously called justice coordinators, facilitators,
52
researchers) were obtained. These data were supplemented by information from a few
community managers and a handful of funding officials. The primary role of the justice worker in
practice was seen to be serving as a bridge between the community and the external justice
system, filling service gaps, more than doing community justice development. Major problems
included the implications of short-term funding, and the lack of training for most workers. Still, a
number of interesting initiatives were launched by the justice workers and they clearly found lots
of useful justice activities to focus upon, usually stretching their initial mandates. Apparently, too,
the communities supported and valued the projects as did the external justice officials. The
report highlights the factors that have led to successful justice worker programs (e.g.
community participation, formation of justice committees, good pre-implementation work, good
communications to the community) and correspondingly, factors that were associated with the
least successful programs (e.g. lack of clearly stated objectives, poor communication of the
project's mandate and limits). The report also calls attention to the importance of in-service
training, networking with the external justice system, and collaboration with other service
providers in the community.
Campbell, Jane and Associates. Sentencing Circles – A Review. Ottawa: Justice
Canada, Aboriginal Justice Directorate, 1995
This report provides a summary overview of how sentencing circles have operated in Canada,
especially in the Yukon and Saskatchewan where these initiatives have been concentrated. The
sentencing circle's key ingredients are considered to be a prior guilty plea or finding of guilt, and
the assembly of justice system officials and community representatives along with the offender
and the victim, to discuss and reach a consensus on the disposition of the case. In compiling the
information the author depended upon interviews of participating judges and crown prosecutors,
and a small number of available case files. After a brief discussion of reasons for the
development of sentencing circles in the early 1990s (citing the 1992 case of "R. v. Moses" as
path-breaking), there is reference to factors influencing a decision to hold a sentencing circle,
factors such as the willingness of all participants, the type of offence, community readiness, and,
especially, a willing judge who is the authoritative decision maker in virtually all aspects. Since
the sentencing circles have no specific legislative basis it is not surprising that there is
considerable variation in practical aspects (e.g. location of the circle, notification procedures,
diversity of participants, pre-circle activities, and seating arrangements). Still, a style has been
developing which incorporates some cultural traditions, is basically informal in dress and
discussion, assembles core participants in a circle, and where consensus decisions are respected
by the judge. Although little systematic evidence is presented on the impact of this phenomenon,
the reported (by the interviewees) positive outcomes and community benefits are many – chiefly
meaningful, direct offender, victim, and community involvement, the mobilization of community
resources, and the merging of First Nation and Western values. The issues and concerns
reported included the obvious diversity as regards selection of cases, community participation,
legal considerations (e.g. legal status of statements made in the circle), and resource implications
for communities and for the justice system.
53
Cawsey, R.A. Justice on Trial: Task Force on the Criminal Justice System and Its
Impact on the Indian and Metis People of Alberta. Edmonton: Province of Alberta,
1991
The Cawsey Task Force issued three volumes, the main volume noted here, a summary volume,
and a third one which contains working papers and bibliography. The Task Force received
many submissions, made site visits, and collected relevant data. Its sections on policing, courts,
corrections, and so forth are well developed with solid supporting evidence. This report shows
that the Canadian-wide over-representation of Aboriginal peoples in the justice system, as
offenders and incarcerates, applies in Alberta. The Task Force concludes that systemic
discrimination exists within the criminal justice system, even when uniform policies are being
applied. It advances some 340 recommendations, a third of which pertain to policing. One of
the principal recommendations is the re-establishment of community control (as opposed to
professional, bureaucratic control) in the criminal justice system. While sympathetic to the
possibilities of an Aboriginal alternative to the conventional justice system, it focuses upon
improving the present system and strengthening local community controls, explicitly leaving the
issue of how autonomous Aboriginal justice might be to negotiations between Aboriginal leaders
and the governments. Recommendations are advanced dealing for example with diversion,
sentencing panels, Aboriginal justices of the peace, and the location of provincial criminal courts.
Interesting presentations were provided the task force by various Aboriginal groups (e.g. the
Blood Tribe analyzed over-representation from the perspective of colonization and also
discussed its traditional concepts of justice).
Church Council on Justice and Corrections. Satisfying Justice. Ottawa: Church Council
On Justice and Corrections, 1996
This book is a story-based compendium of some 100 justice initiatives that, for the authors,
represent credible alternatives to prison and convey the spirit of restorative justice. Throughout,
the emphasis is on successful initiatives that have promoted to varying degrees, the goals of
reparation, victim and community involvement, reduced recourse to incarceration, and the deprofessionalization of justice. Especially highlighted are recent developments, and successful
alternatives to mainstream justice, in the Aboriginal community (e.g. circle sentencing,
community healing programs, creative sentencing). In particular, there is a good, brief discussion
of the Hollow Water project and of the emergence of circle sentencing 'north of sixty'. Also
considered (via discussion and brief stories / examples) are 'family conferencing' models,
diversion programs, mediation programs and other programs that effect reparation and/or
reduce incarceration. Contact persons are given for virtually all projects discussed. Relevant
initiatives from other societies are also presented. This is a well-written book that conveys
effectively the possibilities of the restorative justice movement as well as the demands it makes
on community resources. Justice initiatives are grouped by theme (e.g. Aboriginal people, youth,
sexual offences) in the appendix.
Clairmont, Don. Shubenacadie Band Diversion Program: Analysis and Interim
Evaluation. Halifax: Tripartite Forum on Native Justice, 1993
54
This monograph provides an interim assessment of the adult diversion intervention undertaken
by the Shubenacadie Band in collaboration with the federal and provincial governments in 1992.
Chapters are devoted to crime and social problems in the Indian Brook community, to the
analyses of court records at the provincial criminal court, to the findings of community surveys of
adults and youths dealing with their perceptions of community justice issues and their views on
diversion and this specific project, and to the history of the diversion project to date.
Concerning the latter, attention was paid to the objectives of the project and the extent to which
they were being realized, the selection and training of panel members, the evolution of the
diversion organization, the evolving protocol for cases and concurrent negotiations with Justice
officials, the penetration rate for the project, the diversion procedures and ceremonies, and the
impact on the various parties. The main conclusion was there had been significant institution
building but that the penetration rate was low (i.e. few of the eligible cases went to diversion)
and that the project was quite conventional in its procedures and dispositions. There was little
victim-offender reconciliation and little community participation beyond the diversion
organization itself.
Clairmont, Don. "Alternative Justice Issues For Aboriginal Justice" in Journal of
Legal Pluralism and Unofficial Law, #36, 1996
See annotation in Part A.
Clairmont, Don. Shubenacadie Band Diversion Program: Final Report and Overall
Assessment. Halifax: Tripartite Forum on Native Justice, 1996
This monograph provides an assessment of the last year of the Shubenacadie Band diversion
project and then provides an overall assessment of the four year project. The last year was one
of stress and uncertainty as the project limped to its end. The penetration rate of the project was
disappointingly low and the return of cases to the provincial criminal court because of nonattendance or non-compliance was disappointingly high. While offenders, victims, and the
community in general still supported the diversion concept, its implementation left much to be
desired because there was little community involvement, an aura of secrecy, little networking
with Justice officials, and a lack of morale associated with the organization's passivity (the style
was to wait for cases to be referred by the Crown and not to pursue cases nor exhibit high
visibility). In the second part of the monograph this project is discussed in the more general
context of restorative justice and diversion strategies which were initiated throughout North
America in the 1970s and 1980s (pre-family conferencing) and its similar "administrative justice"
thrust (i.e. cases are handled by program staff rather than at open court or with much
community participation) is highlighted.
55
Clairmont, Don. The Civilian Native Community Worker Project. Halifax: Tripartite
Forum on Native Justice, 1996
This report deals with a quite successful police-based urban justice intervention wherein an
Aboriginal person was hired as a civilian coordinator for Aboriginal cultural sensitivity training,
liaison and other activities designed to improve police-Aboriginal relations in the city. A twoway path model was developed wherein Aboriginal people learned about the police culture and
organization from police officers while officers were being exposed to Aboriginal life and justice
concerns by Aboriginal presenters. The project was popular with police and Aboriginal
persons, and subsequent to project termination the Aboriginal civilian worker was hired full-time
by the Halifax Police Service to carry on and elaborate these activities.
Crynkovich, Mary. "A Sentencing Circle", Journal of Legal Pluralism and Unofficial
Law, 36, 1996
This paper represents its author's observation of the first sentencing circle held in the Nunavik
region of Quebec in the spring of 1993 (see also her Report On A Sentencing Circle in
Nunavik. Ottawa: Department of Justice, 1994). The specific case dealt with wife battering and
was the accused's fourth conviction for the same crime. The initiation of the circle was described
as pragmatic with the judge asking the group assembled, "what are we going to do with this
man." There was no explanation given about the idea of sentencing circles nor was anything said
about their connection to Inuit customs, but the judge did mention that this practice (i.e.
sentencing circles) was in use in the Yukon and was being employed in keeping with the
recommendations of Inuit Justice Task Force. The organization of the sentencing circle
appeared to have been "left to the day of the event" (e.g. sitting arrangements, participants). The
judge indicated that everyone in the circle was equal but also stated that he was not obliged to
follow the advice rendered by the circle members. The author observed that the circle
discussions were low-keyed and focused on the accused with "virtually no discussion about the
harm suffered by his wife, children and family relations because of his actions". Crynkovich
recommended caution in the use of circle sentencing for cases of spousal assault, expressing
concern for the victims and referring to the discriminatory nature of some Inuit traditions (e.g.
elders might excuse wife abuse on the grounds that the woman has not been obedient to her
husband, but Inuit women would not share this view). Further she argued that more discussion
should be required concerning what cases go through the circle, and that the community – which
knows best what its resources are – should have a say in that matter.
Edmonton Police Service. Family Group Conference – 7 November 1996
Here there is a brief discussion of one particular family group conference involving a school and
an Aboriginal youth, conducted by the Edmonton Police Service where all participants were
pleased with the process and the results to-date.
56
Edwards, Bob. "A Risky Experiment: Lawyers Criticize Circle Sentencing", British
Columbia Report, August 31, 1992
This is an interesting, brief account of a court case where the presiding judge decided to utilize a
circle sentencing format subsequent to a non-native, physically and mentally disabled teenager
pleading guilty to 'assault with a weapon' against another non-native at school. The judge
contended that the justice system too often had failed offenders and he did not want to
incarcerate the youth so, despite the objections of the defence attorney, he was going to borrow
from Aboriginal practice and use a sentencing circle. Circle sentencing procedures were
followed and several Aboriginal persons experienced in the procedures were involved as
advisors. While the sentence rendered was not controversial, both crown prosecutor and
defence attorney were critical of the judge's initiative, arguing chiefly that procedural safeguards
were lacking in that no record was kept of the circle discussions, no cross-examination was
allowed, and the bases for opinions offered there were unexamined.
Ellis, D. and D. Beaver. The Effects of Formal-Legal and Traditional Interventions on
Woman Abuse in a First Nations Community. A Report Prepared for Health and
Welfare Canada. Toronto: The LaMarsh Research Programme, York University,
1993.
Federal-Provincial-Territorial Working Group. Step by Step: Evaluating Your
Community Crime Prevention Efforts. Ottawa: The National Crime Prevention Council
of Canada, 1997 (also available on Internet homepage www.crimeprevention.org/ncpc/strategy/s-by-s)
This manual builds upon the work produced by Prairie Research Associates, Building A Safer
Canada, which provides a model for problem-solving, crime prevention efforts at the community
level. Here there is a short review of the four phases of the model and the major steps to follow
in carrying out each phase. This manual then proceeds to elaborate upon the phase, "Monitoring
and Evaluating Your Program", providing nine steps to follow, from "getting started" to
"implementing the evaluation plan". This is a useful complement to Building A Safer Canada, in
that it is directed at probably the most significant shortcomings in community justice initiatives,
namely ensuring that the initiative is implemented as planned, and assessing whether it has
achieved the desirable objectives. Appendices provide information on funding sources, sample
instruments, and where to obtain further help.
Green, Gordon. "Community Sentencing and Mediation in Aboriginal Communities".
Manitoba Law Journal, 1998
See annotation in Part A.
Hamilton, A.C. and C.M. Sinclair. The Justice System and Aboriginal People: Report
of the Aboriginal Justice Inquiry of Manitoba Volume 1. Winnipeg: The Queen's
Printer, 1991
57
See annotation in Part A.
Hickman, A. Report of the Royal Commission on the Donald Marshall Jr. Prosecution.
Halifax: Province of Nova Scotia, 1989
See annotation in Part A.
Howley, Brendan. "In From the Cold" in Enroute, September 1992
This is a short journalistic description of the diversion initiative in Attawapiskat Ontario.
Lajeunesse, Thérèse & Associates. Community Holistic Circle Healing, Hollow Water
First Nation. Ottawa: Solicitor General Canada, Aboriginal Peoples Collection, 1993
This report discusses the preliminary stages of one of the more famous Aboriginal justice
interventions in Canada namely Community Holistic Circle Healing in Hollow Water and
neighbouring Metis communities. The short description notes that the project's seeds go back to
1984 when a group of persons began to meet to discuss the problem on the reserve. Their
dissatisfaction with the way the mainstream justice system dealt with their people led them to
develop a more holistic, healing, community-based programme for sexual abuse conveyed in a
"13 Steps" model which begins with "Disclosure", may go on to "A Special Gathering" and,
some two years later, may conclude with "The Cleansing Ceremony".
This report dealt with the early stages of the program and consequently provides limited
information about the implementation and operation of CHCH. The author contended that it has
resulted in more victim disclosure and that the program leaders did not encourage incarceration
for offenders who acknowledged their guilt.
LaPrairie, Carol. Exploring The Boundaries of Justice: Aboriginal Justice In The
Yukon. Report to the Department of Justice, Yukon Territorial Government, First
Nations, Yukon Territory, Justice Canada, 1992
Here the author makes a strong case for community justice development which can provide
community-based alternatives to formal criminal justice processing described as "not working"
and out-of-sync with the disruption and disorder problems with which it is involved. She
advances the view that the varied community conditions, small widely-scattered population,
Aboriginal and non-Aboriginal mixing, and political-constitutional context of the Yukon make it
an appropriate site for comprehensive justice programming where approaches and programs
can be implemented, evaluated, and subsequently exported to other jurisdictions. After
identifying the major partners, namely First Nations, Yukon Territorial Government and Justice
Canada, and discussing the crime and correctional data along with extant Justice programming
(e.g. native courtworker program, circle sentencing, police diversion), the author examines the
justice activities and interests of First Nations in the Yukon. Virtually all these bands have
significant aspirations in the justice field.
58
LaPrairie notes that the pattern of repeat offenders, problem families, and the ostracized can be
found in virtually all the communities. Also, the role of the elder while significant in Aboriginal
justice discourse is problematic in practice. Community resources required for justice
interventions are scant and most previous justice projects have been introduced piece-meal,
with little pre-implementation work, little community participation, and minimal monitoring and
evaluation. As a result there has been little sense of any incremental development. She contends
that advocates may be seriously underestimating the complexities of introducing viable justice
alternatives. LaPrairie spells out a strategy for community justice development stressing
information needs/dissemination activities, research and evaluation, and identifying possible
projects and specific research questions.
LaPrairie Carol. Evaluating Aboriginal Justice Projects. Ottawa: Department of
Justice, 1994
LaPrairie discusses the context for evaluation, including what she perceives as the overemphasis
on Aboriginal culture at the expense of socio-economic status and heterogeneity, the dominance
of funding definitions in communities' redefinition of their problems, the type of justice problems
typically extant (e.g. interpersonal violence, a small group of chronic offenders), and the lack of
a knowledge basis to properly guide funding decisions. In particular she stresses the underfunding of off-reserve justice strategies and the limitation of isolating an Aboriginal strategy in a
multicultural urban context. She dwells on the relation between justice structures and community
development, and while aware that the former could be part of the latter's emergence, she
cautions against an emphasis on new complex justice structures. In her view emphasis should be
on whether new justice approaches stimulate institution-building or an environment conducive to
community development and, correlatively, whether there is a building of bridges with
mainstream institutions and regional Aboriginal structures. She recognizes that many initiatives
have an important symbolic function, but holds that that value must be transcended if Aboriginal
justice concerns are to be met.
Turning to substantive areas, LaPrairie found, based on interviews with representatives from
those largely governmental bodies with Aboriginal justice functions, that these officials could
articulate the most serious criminal justice system problems facing Aboriginal people and
communities and could indicate their policy priorities and how these are reflected in programs
and projects. At the same time, they had little systematic information on the actual programs and
projects, depending basically upon informal "lessons learned". As regards these lessons,
LaPrairie listed the following: the need to consult with a representative sample of community
members and not just a select elite (i.e. Community Consultation); the need for community
justice structures such as sentencing circles, diversion, and community courts, and evaluating
whether these achieved their objectives, the type of offenders and offences they are suited for,
and their impact on recidivism and rehabilitation, on victims, cost effectiveness, political
independence, and equity (i.e. Community Justice Structures); the need to evaluate treatments in
terms of cultural sensitivity, effectiveness, and efficiency (i.e. Community Treatments); the need
to assess access to justice, and the role of culture in Corrections (e.g. does getting in touch with
Aboriginal traditions make a difference, and, if so, how?); the need to evaluate first nations
59
policing arrangements; the need to determine community readiness for projects, including how
people are selected and trained to deliver new services (i.e. Community Capacity).
LaPrairie, Carol. Seeking Change: Justice Development In LaLoche, Saskatchewan.
Ottawa: Department of Justice, 1997
This report is a short case study of crime, criminal justice processing, and justice developments
in a northern non-primary resource Dene community in Saskatchewan. Laloche has a very high
crime rate which generates a high rate of incarceration. The chief offenders are young male
adults, ill-educated, underemployed, and prone to recidivism and to a high level of court-related
offences (e.g. fail to appear, breach of probation) and person offences. The author examines
justice developments including the umbrella Community Development Corporation, the
Community Justice Development Worker, and Alternative Measures, and makes
recommendations for both these latter initiatives. She also stresses the need for greater
collaboration between the criminal justice system and the community as well as between the
police and the community.
In discussing this troubled and welfare-dependent community the author reports on the decline
of community and communitarianism that presumably have accompanied material improvements
and other facets of modernity, but she is careful to delineate both community strengths and the
factors conducive to crime and disorder. LaPrairie emphasizes that the community's informal
mechanisms of social control and dispute resolution are quite weak and there tends to be a lack
of communication, apathy, and a small volunteer base for boards and other community activities.
There is a great dependence on the police (RCMP) "for a huge variety of things" and the police
in this busy detachment have not initiated formal cautioning or diversion programs nor become
involved in activities such as the Aboriginal Shield Program for schools. The author identified the
special crime problem as young male adults who are repeat and chronic offenders, and their
marginalized families.
LaPrairie describes the LaLoche Community Development Corporation (CDC) as heavily
engaged in justice-related initiatives but suffering from the common problem of attempting too
many things at one time. One of its projects is the justice development worker program but
there is ambiguity in it concerning mission, direction, and accountability. Similarly, there is a lack
of networking on the part of the CDC and/or justice worker with officials of the criminal justice
system who expressed both a willingness to become involved and a surprise about the lack of
contact. LaPrairie suggests a need for a communications strategy, and, as noted above, also
advances recommendations to improve the two main justice initiatives, namely the justice
worker program and alternative measures.
Linn, P. Report of the Saskatchewan Indian Justice Review Committee. Regina 1992
See annotation in Part A.
Linn, P. Report of the Saskatchewan Metis Justice Review Committee. Regina 1992
60
See annotation in Part A.
Martens, Tony, Brenda Daily and Maggie Hodgson. The Spirit Weeps:
Characteristics & Dynamics of Incest and Child Abuse With A Native Perspective.
Edmonton: Nechi Institute, 1988
This is an oft-cited monograph on child sexual abuse and general issues of abuse and healing
potential in Aboriginal communities.
Moyer, Sharon and Lee Axon. An Implementation Evaluation of the Native
Community Council Project of the Aboriginal Legal Services of Toronto. Toronto:
Ontario Ministry of the Attorney General, 1993
This is a comprehensive evaluation of the adult diversion project implemented by Aboriginal
Legal Services of Toronto in 1991. Evaluators reviewed documentation, conducted interviews
with a wide range of appropriate role players (including outside officials), and sat in on hearings
for four different clients. The objectives of the project are specified. The process of selection
and hearing procedures are described. Interestingly, the members of the diversion hearing
councils, while Aboriginal, are not elders as initially planned for, but rather, as in such programs
in the larger society, are primarily active and economically successful people between the ages
of 35 and 55. The evaluators suggest that the project has been well implemented, is efficient,
and has maintained good relations with outside Justice officials. Project clients viewed their
diversion experience in a very favourable light. Other role players were also positive. Overall the
project is deemed quite successful in relation to its objectives but evaluators note that it has
been somewhat under-utilized, that there is too little monitoring of non-compliance, and that
there has been little formal client needs assessment. They also suggest that there be a
developmental phase for all future Aboriginal justice projects, especially perhaps for projects in
urban contexts.
Nechi Institute and KAS Corporation Ltd. Healing, Spirit and Recovery - Factors
Associated with Successful Integration. Ottawa: Solicitor General Canada, Aboriginal
Peoples Collections, 1995
This report looks at "successes ... Aboriginal people who have made a better life for themselves
and their families after being incarcerated". It provides brief case-studies of twenty Aboriginal
persons who have made the transition from incarcerate (often a multiple incarcerate) to
employed, law-abiding citizen. For all the participants, getting into trouble was associated with
extensive use of alcohol or drugs or both. "Getting in touch with one own's spirituality was
identified as a key to recovery by all the participants." The desire to change their criminal
lifestyle was juxtaposed with a developing awareness of their Aboriginal culture and spirituality.
They found a new way of life which empowered them with a sense of direction, valued their
culture and provided a way of relating positively to others. This new way of life took time and
was the culmination of an holistic approach to healing. All participants were known to the staff
at an Aboriginal healing institute so more research is required to establish how pervasive their
experience is among successful ex-inmates. The report calls for a more holistic approach to
61
correctional programming and the continuing availability of Aboriginal spiritual programs and
representatives in correctional settings.
Nielsen, Marianne. “Native Canadian Community Sentencing Panels: A Preliminary
Report”, paper presented at the American Society of Criminology Annual Meeting,
Miami, 1994
See annotation in Part A.
Nuffield, Joan. Diversion Programs for Adults. Ottawa: Solicitor General Canada.
1997 (also available on Internet homepage @ www.sgc.gc.ca)
See annotation in Part A.
Obonsawin-Irwin Consulting Inc. An Evaluation of the Sandy Lake First Nation Justice
Pilot Project. Ottawa: Department of Justice, 1992
The Sandy Lake adult diversion project began in 1990 with the swearing in of an elders' justice
council which would sit with the judge and the justice of peace to assist in the adjudicating and
sentencing process. This evaluation was based solely on interviews with a wide range of role
players but neither files nor data were accessed. Project documentation identified the objectives
as increasing self-determination and community involvement while reducing offences and
incarcerations. By far the most frequent offence involved the misuse of intoxicants. Both the
elders and the project coordinator were paid. The elders apparently received little training.
Accused persons, community leaders, and outside officials were generally satisfied that the
intervention represented an improvement over the extant justice system. While it is argued that
objectives were being met a number of recommendations were made including greater
development of the healing and the preventive / educative approaches, and of conflict of interest
guidelines. Clearly this project dealt only with minor offences and while there was community
involvement through the elders it was not clear whether an alternative philosophy was in
operation. Transition problems occasioned by new band elections and conflict over the role of
elders have seriously limited this project.
Obonsawin-Irwin Consulting Inc. An Evaluation of the Attawapiskat First Nation
Justice Pilot. Ottawa: Department of Justice, 1992
The Attawapiskat adult diversion project was similar to that of Sandy Lake in many respects
(e.g. objectives, elders sit with judges, pay and budget, post-charge diversion, clients were
mostly young men, participation of offender was voluntary, misuse of intoxicants was the chief
offence, similar dispositions were rendered, the coordinator acted like a court clerk) but was
different in that elders handled some minor offences (i.e. band bylaws) on their own. There was
significant satisfaction with the project on the part of the offenders but victims and community
leaders were often ambivalent, especially arguing that some serious sexual assault cases were
inappropriately diverted to not sufficiently well-trained elders. Friction developed between
Council and the project. The project coordinator had to act as probation monitor since
62
Correctional Services had no jurisdiction in diverted cases. The evaluators recommended that
the project be scaled back in scope pending a review of the project's mission, operational
philosophy and objectives, something they said should be done with significant community
involvement. They also recommended criteria and guidelines for the selection of members to,
and the operation of, the elders' council. This project was in a state of limbo after two years of
operations.
Osnaburgh-Windigo Tribal Council Justice Review Committee. Tay Bwa Win: Truth,
Justice and First Nations . Report prepared for the Ontario Attorney General and
Solicitor General, Toronto, 1990
This report discusses the administration of justice in the context of the larger issues of economic
development, language, education, and health. The Committee advances many specific
recommendations, some forty-three in total, covering topics from housing to the conducting of
inquests, but its report is most noteworthy for locating justice issues facing Aboriginal people in
the wider context of colonialism; "any attempt to reform the justice system must address this
central fact: the continuing subjugation of First Nations people". Consistent with that emphasis,
the Committee stresses that justice reforms have to be placed in the context of a wider agenda
of re-establishing Aboriginal communities as healthy, strong, and vibrant. Economically viable
land bases and powers of self-government, including the power to develop Aboriginal justice
systems, are deemed to be required. The authors "feel that our Report confirms [that First
Nations must have recognition of their right to control important aspects of their lives which must
include control of the criminal justice system on their reserves and in their communities]".
Pennell, Joan and Gale Burford. "Widening the Circle: Family Group DecisionMaking" in Journal of Child and Youth Care. 9 (1), 1994
One of the Newfoundland communities where the family was brought into the corrections'
treatment process was an Aboriginal community (see Burford et al, above).
Prairie Research Associates. Building A Safer Canada: A Community-based Crime
Prevention Manual. Ottawa: Department of Justice, 1996
This manual, produced for Justice Canada, provides a model for community-based crime
prevention which adopts a problem-solving perspective. It outlines four phases, namely
identifying and describing problems, developing an action plan, implementing the action plan,
and monitoring and evaluating the program. For each phase the authors specify steps to follow
and suggest strategies and possible solutions for advancing the objective of 'a safer community'.
This 'bare bones' manual could be adapted for Aboriginal communities by contextualizing the
model with reference to the special Aboriginal circumstances, experiences to date, sources of
expertise and support, and funding possibilities.
"R. v. Moses", 11 Crim. Rep. (4th) 357 (Yukon Terr Ct), also reprinted in the text
Dimensions of Criminal Law, 1992
63
See annotation in Part A.
Saskatchewan Justice. Sentencing Circles: A Discussion Paper. Regina: Policy,
Planning and Evaluation, Department of Justice, Saskatchewan, 1993
See annotation in Part A.
Saunders, Lauren. First Nations Police Governing Authorities: A 'How To' Manual.
Ottawa: Solicitor General Canada, 1995
The author discusses four areas, namely structure, roles and responsibilities, operating
procedures and identifying and meeting community needs. Concerning structure, the author
refers to issues such as the size of the board, the selection of its members, the establishment of
specific subcommittees, and the role and term of the chairperson and other appointees.
Regarding policies and procedures, the author talks of clarifying goals and objectives with the
aid of a mission statement, a strategic plan, developing policies, and doing periodic reviews.
Spelling out procedures for the hiring, training and accountability of personnel is also stressed.
Operating procedures are, of course, crucial to detail and, in this regard, the author deals with
issues of frequency of meetings, conflict of interest guidelines, and achievement of nonpoliticization. The final section deals with identifying and meeting community needs; here, both
formal (council meetings, interagency meetings, media reports) and informal (open door policy)
methods are discussed.
Schrimi, Ron. Community Development Project: Final Report. Prince Albert
Saskatchewan: Prairie Justice Research, 1992
This report evaluates recent community initiatives undertaken by Correctional Services of
Canada (CSC), primarily the utilization of a community development officer to develop
community linkages and resources for offenders either released or on day parole. It is interesting
for two major reasons: one, that the Community Development Officer was found to spend far
too much time and energy on administrative rather than community development matters, and,
two, that the author emphasizes that there is a need for CSC to have an orientation to local
communities which invites a larger role for them, one that is empowering and has input into
correctional policies and practices.
Solicitor General Canada. Model Protocol for Evaluation of First Nations Police
Service. Ottawa: Solicitor General Canada, unpublished, 1997
Here objectives are developed, areas to be examined specified, and suggested methods
advanced. Subsequently, a number of research questions and associated recommended
methods are detailed for each of the nine specified areas, namely operations, governance,
management, personnel, morale, compliance, impact of the local environment, and adequacy of
resources.
Sparwood B.C. RCMP Detachment. Sparwood Youth Assistance Program, 1995
64
Enclosed there is a brief statement of the protocol and procedures for a youth family
conferencing program utilized by RCMP in Sparwood B.C. Copies of the information sheet,
consent forms, RCMP undertaking regarding evidence, the disposition agreement, and victim
evaluation form are included.
Statistics Canada. Criminal Justice Indicators. Ottawa: Statistics Canada, 1997
Here indicators are set forth in order to monitor the state of the criminal justice system in
Canada. Three types of indicators are specified, namely workload (measures of activity),
performance, (measures of efficiency and effectiveness) and environment (e.g. poverty levels,
availability of shelters for battered women etc.). Regarding performance measures, the report
situates these in the context of five commonly cited goals of the criminal justice system. Clearly
there could be much overlap with respect to the monitoring of Aboriginal justice systems.
Stuart, Barry. Building Community Justice Partnerships: Community Peacemaking
Circles. Ottawa: Aboriginal Justice Learning Network, Department of Justice, 1997
See annotation in Part A.
Williams-Louttit, Pennie. BIIDAABAN; The Mnjikaning Community Healing Model.
Second Edition. Mnjikaning Ontario, 1996
This document describes the model developed by this First Nation to deal with the problems of
sexual abuse. Basically, it adheres to the principles and procedures developed in the Hollow
Water Circle Healing model. The Biidaaban Circle has been accepting families for healing since
the summer of 1996 although the program has yet to be fully implemented. The program was a
response to concern about "the degree of child sexual abuse in the community and the hidden
nature of this problem". A core group of sixteen persons who constituted the circle received
training (some 13 full days) and also prepared the manual. The model described aims at "healing
the person who has abused, the person who has been abused, the spouse of the abuser, the
family and the entire community". In the model there is a Biidaaban coordinator, a disclosure
team (including the coordinator, the police, crown attorney, and a representative from family
services), and a validation team (including the disclosure team plus a justice of the peace and all
Circle members); specific Circle members provide support for the various parties. According to
the proposed model, when all parties have been "prepared" there is a Special Gathering where a
Healing Contract is generated, and the completion of the latter (anticipated to be usually at least
two years after the Special Gathering) is to result in a Cleansing Ceremony.
Wiseman, Marie. Smart Policing: Faust Detachment, 'K' Division. Ottawa: Aboriginal
Policing Services, 1996
This report discusses RCMP policing in a largely Aboriginal detachment area where the RCMP
are doing community-based policing, community revitalization work, and much varied problem
65
solving. The RCMP is working there on establishing a family conferencing program as an
possible option to the formal criminal justice system in some instances.
66
67
PART C
OTHER MATERIALS
69
There is an extensive and growing literature of academic studies and program descriptions and
evaluations in the field of restorative justice. For all the major new strategies such as family
group conferencing and sentencing circles there are descriptions, 'how to' manuals, and
evaluations. The literature cited above can be gleaned for further references. There is also
copious material on special Aboriginal justice areas such as the native courtworker program
(see Clairmont, 1992 and Campbell, 1995 above).
The Aboriginal Peoples Collection published by the Aboriginal Corrections Policy Unit contains
a wealth of related materials. A copy of the list of available publications may be obtained by
writing to:
Aboriginal Corrections Policy Unit
Solicitor General Canada
340 Laurier Avenue West
Ottawa, ON K1A 0P8
Phone: (613) 991-2846
Fax: (613) 990-8295
E-mail: [email protected]
Many Aboriginal justice initiatives will entail the collaboration if not the leadership of the police.
Three publications available through the library of the Solicitor General Canada may be helpful
in understanding the role of policing in Aboriginal communities today. They are Social Policy
Research Associates, National Evaluation Overview of Indian Policing, 1983; Jamieson, Beals
and Lalonde Associates, Evaluation of the First Nations Policing Policy and Program, Volumes
1 and 2, 1995; Murphy and Clairmont, First Nations Police Officers Survey, 1996.
In addition to print there are many video productions now available dealing with Aboriginal
justice issues as well as with restorative justice projects or ideas in general. Some of the better
ones are Cardinal, Gill, National Film Board, The Spirit Within, 1990 which deals with inmates'
search for culture and spirituality; Obomsawin, Alanis, National Film Board, Poundmaker's
Lodge, 1987; Aboriginal Justice: A Time For Action, Royal Commission on Aboriginal
Peoples, 1993; The Making of Rage, Native Counselling Services of Alberta, 1995; Youth
Justice Committees, Native Counselling Services of Alberta, 1996; Sentencing Circles, Vision
TV, Northern Native Broadcasting, 1997; First Nation Blue: Policing in Aboriginal
Communities. Ontario TV, 1996; Restoring Justice, National Council of Churches of Christ in
the USA, 1996. Two sources of useful videos on Aboriginal youth, young offenders, and the
circle of life are Magic Lantern Communications Ltd and Why Not Productions. The Aboriginal
Corrections Policy Unit, Solicitor General Canada, in addition to supporting Rage, a
documentary four-part video series on Aboriginal male inmates caught up in the cycle of
violence, has supported several videos on Aboriginal female inmates (Getting Out, and To Heal
The Spirit, both produced by Why Not Productions), and on post-incarceral rehabilitation
(Drum Song, and Healing The Spirit). The National Film Board will soon be releasing a film
about Community Holistic Circle Healing in Hollow Water and The Nitinaht Chronicles, a film
about a community dealing with sexual abuse.
70
Another recent initiative has been the opening of the Centre for Municipal-Aboriginal Relations
in January 1997 to facilitate collaboration and effective relations between municipal and First
Nations governments and Aboriginal communities. A 'best-practices' literature review
concerning municipal-Aboriginal relations has been produced. For some, if not many, Aboriginal
communities efficient a
nd effective justice initiatives could well entail collaboration with surrounding municipal
governments; of course this is especially true for Aboriginal communities in urban contexts.
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THEMES FROM THE LITERATURE
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1. Need to prepare for the implementation of the project
Developing new justice initiatives requires time, planning, community collaboration and
resources. Where there has been little pre-implementation development work Aboriginal justice
programs have often been less successful than hoped for (e.g, the Shubenacadie Band Diversion
Program, South Vancouver Island program, diversion programs in Sandy Lake and
Attawapiskat). On the other hand where much effort was expended on activities such as
community preparedness, spelling out objectives and procedures and clarifying accountability,
the programs have usually fared well (e.g, self-administered First Nations policing services, the
Hollow Water Healing Program, the diversion program of Aboriginal Legal Services in
Toronto). Unfortunately the funding context often limits necessary preparatory work since
funding is usually for a specified time period, for a specific objective entailing a specific hiring.
There is then a tendency to rush into a service activity whereas clearly both government funders
and community advocates must recognize that developing efficient effective justice initiatives in
typically small communities with limited resources usually requires a pre-implementation
development phase.
2. Need to select the right staff
Past justice initiatives typically have entailed the hiring of one or two staff persons to coordinate
developments, provide services and the like. With the limited resources made available, the
short-term time frame, and the combination often of high expectations and 'lots to do' (either
because of little other programming or lack of effective collaboration of community programs),
the need to select the right person(s) is very crucial; often the wrong choice is fatal for the
project. A selection committee should determine the kind of program/project objectives and
processes desired, the kind of person(s) most suitable under those circumstances, and then
arrange for a selection process.
3. Networking with mainstream CJS officials is essential
Virtually all Aboriginal justice initiatives will require collaboration with mainstream justice
officials. Whether it be the judge who facilitates sentencing circles, the prosecutor who channels
cases to a diversion program, corrections officials sponsoring various parole alternatives, or the
provincial police who provide backup and special services to First Nation police services
and/or First Nation communities, mainstream justice officials are crucial contact points and
regular networking must be done with them in order to ensure a program's success. This is
especially the case since there are few on-going funded Aboriginal justice programs and little
explicit constitutional basis for most Aboriginal justice initiatives. The evidence from interviews
with Aboriginal role players appears to be that most mainstream justice officials are fairly
positive about the new initiatives but they are often confused about the project's objectives and
procedures, and about the role of their front line staff (e.g. community justice workers). The
officials often refer to the need for more communication with the projects' staff. Successful
Aboriginal justice initiatives such as Aboriginal Legal Services, Hollow Water Healing, and Six
Nations Police Service all have in common, excellent networks with mainstream justice officials.
74
4. Equity in carrying out a program is a key to the legitimation of authority
While it is expected that all Aboriginal justice initiatives will have the formal approval of chief
and council, the legitimation of their authority in the community (and certainly the level of respect
for the program and its staff) will also depend upon how effective the staff have been in treating
cases and persons equitably (i.e. being fair to all participants and treating all persons equally
insofar as the case circumstances and community-sanctioned bio-social statuses are similar) and
in communicating that accomplishment to the community at large. This accomplishment is always
difficult and perhaps especially so in small communities where kinship ties are dense and where
formality and distant relations between staff and service users are less likely. Where equity has
not been seen to have been achieved (e.g. several diversion projects) the Aboriginal justice
initiatives have faltered but its achievement can effectively cancel out many other project
shortcomings.
5. Need to buffer the project's operations from political issues whether local or
between First Nations and the wider society
Unless the initiative is buffered from direct local political pressure it may not survive electoral
changes in chief and council membership (as has happened in several instances) and/or will not
achieve equity, efficiency and effectiveness. In the case of policing services, a well functioning
board accomplishes this buffer function whereas for other justice initiatives a representative
community justice committee can perform this valuable function. Written guidelines (conflict of
interest guidelines and other operating procedures) and program mission statements and service
philosophy statements can also be helpful and are the hallmark of some of the best Aboriginal
justice initiatives. Of course projects can sometimes also become hostages in conflicts between
community authorities and outside governments; indeed, a common reason for a project's
demise has frequently been this kind of political conflict. It may not be possible or even
desirable to buffer a project from these conflicts since clearly the larger political agendas may
well represent more important priorities. Nevertheless a well-managed operation with a good
communication system and practised networking can sometimes carry on in the midst of
significant larger conflict.
6. Involve the community at large
It is important to involve the community at large and not simply the few persons involved directly
in the justice initiative whether as staff or committee members. Reaching out to the larger
community facilitates the development of a strong community, and the legitimation of the
program; it provides access to further ideas and resources, and helps the organization avoid
burn-out; in small communities it is often the case that only a small handful of people serve on all
committees. This objective of involving the community at large can be achieved through
community information sessions, newsletters, and expanded committees or panels.
7. Assess and communicate
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A well-run program is one where the staff is regularly assessing its activities in relation to the
program's mission statements, goals and objectives, AND reporting on these assessments to
targets groups and the community in general. Preparing regular reports (they need be only a few
pages in length) focuses staff on its main tasks and enables it to see the forest as well as the
trees. Communicating such reports beyond the organization establishes the willingness of project
leaders to be accountable to their constituency.
8. Avoid being spread too thin
Developing an efficient, effective and equitable Aboriginal justice initiative is usually a demanding
task, requiring significant institution building at the local level even while operating in a situation
where objectives may be unclear, jurisdiction ambiguous and funding short-term. There is
tremendous pressure to pursue other funding leads and to expand the mandate and core
activities/services rather than dealing with shortcomings and problems basic to the tasks at hand.
Getting involved in too many activities and services has been one of the chief problems in
Aboriginal justice projects, an understandable, though often fatal, response to the absence of
service infrastructure in the community, the funding constraints, and the lack of management
expertise.
9. Youth programming is always popular
Studies, program evaluations and basic research, generally point to the widespread view in
Aboriginal communities that justice initiatives of diverse sorts are especially needed for youth.
Youth-oriented programs typically receive strong community support. These initiatives might
include school programs such as the RCMP's Aboriginal Shield Program, alternative measures
for youth (e..g. sentence advisory groups in Alberta), and family group conferencing. Sentence
dispositions can range from wilderness experience to more conventional community service
orders. While a strong case can be made for emphasizing youth-oriented initiatives, it is
unfortunate that few programs are directed at the chief offenders (according to police and court
statistics) namely young male adults; virtually all research on crime and social disorder in
Aboriginal communities has consistently identified the young male adults as disproportionately
involved and a small subset of them as constituting a major recidivist grouping; yet few programs
are directed at this subgroup.
10.
Raising the issues and dealing with criticisms
It is important to remember that criticism does not mean disapproval of the program.
Evaluations of many Aboriginal diversion projects for example revealed much victim and
community criticisms but the respondents still valued the initiative. Criticisms can be used to
develop a better program. Also sometimes it is important to discuss with people to remind
people why the initiative is being undertaken and what the alternatives are; for example many
persons may say that diversion is only a slap on the wrist but at least the offender does
something for the victim and/or the community whereas in the mainstream justice system one
cannot even guarantee that kind of action. Raising the issues and dealing with criticisms allow for
program clarification, reflects an openness to ideas, a willingness to be accountable, and
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conveys clearly to community members that "it's their project too". This collaborative partnering
can be accomplished by special discussion sessions with special groups (focus groups), by
periodic review of project protocols, and by regularly scheduled community sessions.
11.
Need to retain a balanced perspective
Patience is clearly a requirement in the process of developing new justice initiatives. Community
expectations may be very demanding, and even unrealistic in the short-run (e.g. a common
experience of self-administered First Nation police services). Sometimes there may be much
ambiguity about an initiative in the community and also among mainstream justice system
collaborators (e.g. a common occurrence in Aboriginal adult diversion programs); this is to
expected when projects are 'breaking new ground'. As the old saying goes, "Rome was not built
in a day"; certainly the Canadian Justice system was not, and a distinctive, well-functioning
Aboriginal alternative will not be. At the same time complacency must be avoided since
resources have to be carefully husbanded (they generally fall short of staff's perceived levels of
need) and rarely does project funding carry a long time frame (virtually all previous Aboriginal
justice projects have received only short-term funding); accordingly, it is necessary for project
managers to be 'on top of the situation', able to marshall evidence for implementation and
impact, to make a case for project continuance if desirable, and/or to build on accomplishments
and pursue other related possibilities. In other words there is a need for balance, for patience
tempered with preparedness and activism.
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