Aboriginal Community Sentencing and

Mediation: Within and Without the Circle

ROSS GORDON GREEN*

1997 CanLIIDocs 126

I. INTRODUCTION

T HE DECISION IN R. v. Moses' articulated concerns about prevailing Anglo-

Canadian sentencing practices and presented a new approach: circle sen-
tencing. This envisaged a sentencing hearing, conducted in circle format, which
would include the judge, defense and Crown counsel, the police, the offender,
the victim, the probation officer, and assorted community members. All partici-
pants would attempt to reach a consensus on an appropriate sentence and,
hopefully, would assist through supporting and supervising the offender follow-
ing court. In introducing this process, Judge Barry Stuart stated:
For centuries, the basic organization of the court has not changed. Nothing has been
done to encourage meaningful participation by the accused, the victim, or by the
community .... If the objective of the sentencing process is now to enhance sentencing
options, to afford greater concern to the impact on victims, to shift focus from punish-
ment to rehabilitation, and to meaningfully engage communities in sharing responsi-
bility for sentencing decisions, it may be advantageous for the justice system to exam-
ine how court procedures and the physical arrangements within court-rooms militate
against these new objectives.'
The need for sentencing reform within aboriginal communities appeared un-
questionable given the product of conventional sentencing. Professor Michael
Jackson, in an article entitled "Locking Up Natives in Canada,' detailed the
over-representation of aboriginals within Canadian jails4 and observed that,

B. Comm., LLB., LL.M. (Manitoba). Mr. Green has been a criminal defense lawyer in
central Saskatchewan since 1986. The author also teaches the Criminal Procedure Section
of the Law Society of Saskatchewan Bar Admission Course. This work was motivated by
the author's immersion in the aboriginal sentencing problem and a 1993 Northern Justice
Society conference held in Kenora, Ontario. The majority of the research presented in this
paper was conducted during Mr. Green's completion of his LL.M.
(1992), 71 C.C.C. (3d) 347 (Y. Ten. Ct.) [hereinafter Moses].
2
Ibid. at 355-356.
3 M. Jackson, "Locking Up Natives in Canada" (1988-89)23:2 U.B.C. L. Rev. 215.
4 Supra note 3 at 216. Professor Jackson described the situation in Saskatchewan and Mani-
toba: "In Manitoba and Saskatchewan, native people, representing 6-7 percent of the
population, constitute 46 percent and 60 percent of prison admissions."
78 MANITOBA LAW JOURNAL VOL 25 NO 1

"[m]ore than any other group in Canada they are subject to the damaging im-
pacts of the criminal justice system's heaviest sanctions."5 More recently, the
Royal Commission on Aboriginal Peoples confirmed this assessment and com-
mented that the "over-representation of Aboriginal people in Canadian prisons
has been the subject of special attention and appropriately so, because the sen-
tence of imprisonment carries with it the deprivation of liberty and represents
Canadian society's severest condemnation.s6 The negative impact of jail upon

1997 CanLIIDocs 126

First Nation offenders and communities was described by Lilies J. in R. v. Ging-
ell:7
jail has shown not to be effective for First Nation people. Every family in Kwanlin Dun
[the Yukon] has members who have gone to jail. It carries no stigma and therefore is not
a deterrent. Nor is it a "safe place" which encourages disclosure, openness, or healing. The
power or authority structures within the jail operate against "openness." An elder
noted: "[j]ail doesn't help anyone. A lot of our people could have been healed a long
time ago if it weren't for jail. Jail hurts them more and then they come out really bitter.
In jail, all they learn is 'hurt and bitter"'[emphasis added] .8

While concerns over conventional sentencing practices cannot be considered

the sole cause of aboriginal over-incarceration,' new sentencing approaches and
philosophies may form part of the solution to this inequity.
The purpose of this study is to identify, describe, and evaluate criminal
sentencing and mediation initiatives functioning in Canadian aboriginal com-
munities. These have been characterised by increased participation of victims,
offenders, and local community members. Specific initiatives in six aboriginal
communities in Manitoba and Saskatchewan were studied in depth: Sandy
Bay,10 Pelican Narrows," and Cumberland House" of Saskatchewan, and Hol-

5 Supra note 3 at 215.

6 Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Abo-
riginal Peoples (Ottawa: Canada Communication Group, 1996) at 29.
r (1996), 50 C.R. (4th) 326 (Y. Terr. Ct.) at 342-43 [hereinafter Gingell].
8 Ibid. at para. 63
9 T. Quigley, "Some Issues in Sentencing Aboriginal Offenders" in D. Gosse, J. Youngblood
Henderson & R. Carter, eds., Continuing Poundmaker's & Riel's Quest (Saskatoon: Punch,
1994) 269 at 272-277. Professor Quigley comments that the causes of this inequity are
complex and include the poor socio-economic circumstances of many aboriginals, the high
percentage of aboriginal youth within the range of age most susceptible to criminal activity,
the level of policing in aboriginal communities, the "snowball" effect of a prior criminal re-
cord, a greater likelihood of an aboriginal accused being denied bail, and the lack of sen-
tencing alternatives available for sentencing under the Criminal Code.
1° Located 190 kms north-west of Flin Flon, Manitoba.
''
Located 100 kms north-west of Flin Flon, Manitoba.
12
Located 85 kms south-east of Flin Flon, Manitoba.
 Aboriginal Community Sentencing and Mediation 79

low Water First Nation,13 Waywayseecappo First Nation,14 and Mathias Colomb
Cree Nation (Pukatawagan)of Manitoba.i5 Reforms were analysed with respect
to origin, relationship to systems of local and state control, and future progress
and development. Given the short history of these initiatives,16 conclusions re-
specting their impact upon offenders, victims, and local community members
would have been premature and thus remain preliminary." Nevertheless, analy-
sis and comparison of these initiatives have provided valuable insights into per-

1997 CanLIIDocs 126

spectives held by initiative participants respecting justice and sentencing prac-
tices. Inter-relationships between these initiatives and local systems of social
control have also been identified, facilitating thoughts about the applicability
and transferability of community sentencing and mediation approaches to other
larger and more ethnically diverse communities.
The six sites chosen for study are, to varying extents, isolated from the large,
southern urban centres of Manitoba and Saskatchewan. The communities are
serviced by a circuit court which accesses the communities of Sandy Bay, Peli-
can Narrows, Cumberland House, and Pukatawagan18 by airplane. Hollow Wa-
ter does not have a regular court sitting; rather, special sittings have been held
in this community to conduct sentencing circles. Waywayseecappo is serviced
by a circuit court which travels by road. Police services in each community are
provided by the Royal Canadian Mounted Police (RCMP). These communities
have experienced, in recent years, a change in the procedure by which some
offenders were sentenced in provincial court or diverted to local mediation.
However, each community appears to have had a distinct experience respecting
the introduction and development of community sentencing or mediation, sug-
gesting interesting bases for comparison and contrast.19

13 Located 190 kms north-east of Winnipeg, Manitoba on the east shore of Lake Winnipeg.
t4 Located 351 kms northwest of Winnipeg.
15 Located 819 kms north of Winnipeg
16 All initiatives studied commenced within the prevailing court structure in or after 1992.
17 During the course of this study, Judge Fafard, of the Provincial Court of Saskatchewan in
La Ronge, commented on several occasions that it was too early to form any final conclu-
sions about the impact of circle sentencing in Northern Saskatchewan.
18 At the time research for this study was conducted, court was held regularly at Pukatwagan
with the court party flying north from The Pas. As of spring 1997, it was learned that the
Mathias Colomb Band had refused entry to the court party resulting in any charges for Pu-
katawagan residents being dealt with at court in The Pas, approximately 210 kms away.
19 Judges, Crown and defense counsel, police officers, and local community members were
interviewed for their observations of specific sentencing and diversion proceedings. As-
sorted secondary materials respecting these communities were obtained through local
community members, Indian and Northern Affairs Canada (INAC), and the libraries at the
University of Manitoba. As an aid to interpretation of data collected from the six commu-
nities, case law, commission reports, books, and domestic and international journal articles
80 MANITOBA LAW JOURNAL VOL 25 No 1

II. COMMUNITY PARTICIPATION MODELS

A. Searching for New Approaches

In the conventional Anglo-Canadian justice system, Crown prosecutors repre-
sent the interests of victims20 and community members at sentencing. Although
evidence of their views may be tendered by defense or Crown counsel, commu-
nity members and victims are not considered parties to the sentencing hear-

1997 CanLIIDocs 126

ing.21 Several Canadian inquiries into the treatment of aboriginal people within
the Anglo-Canadian justice system have questioned the lack of direct commu-
nity input at sentencing. The Aboriginal Justice Inquiry of Manitoba com-
mented:
If non-Aboriginal judges and courts are going to be able to formulate sentences which
are appropriate to the needs of Aboriginal offenders, victims and communities, they
will need direct input from those communities ... . In particular, communities need to
be involved in the sentencing process, since sentences should, in part, reflect the needs
and desires of the community.22

were considered. These secondary sources facilitated an understanding of community sen-

tencing-initiatives across Canada, allowing for comparison with the initiatives studied and
for consideration of the applicability and transferability of such approaches to other com-
munities.
20
Not all offenses have a victim who is clearly identifiable. For example, offenses such as Pos-
session of a Narcotic or Impaired Driving (without causing bodily harm to another person)
have no identifiable victim other than, perhaps, the public at large. Realistically, no victim
would be available for court purposes.
21 Comments by de Weerdt J. in R v. Cabot-Blanc, [1987] N.W.T.R. 1 (S.C.) at ll reflected
the prominence of defense and Crown counsel within the conventional sentencing hearing:

As to the task force recommendations (the Task Force on Spousal Assault in the
Northwest Territories, 1985) ... to the effect that the courts should spend more
time on spousal assault cases and find ways to have the evidence of community
action groups and leaders placed before the courts (at the same time urging com-
munity initiatives such as informing the judiciary of "community attitudes and ex-
pectations regarding the crime of spousal assault and its punishment"), I think that
it should be said here that it is the function of counsel to ensure that pertinent evidence is
adduced before the courts, and that it is not appropriate for judges to turn themselves into
inquisitors, investigators or commissions of inquiry in that connection [emphasis added].
22
Manitoba, Public Inquiry into the Administration of Justice and Aboriginal Peoples, Report
of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People, Vol. 1,
(Winnipeg: The Queen's Printers, 1991) at 409.
 Aboriginal Community Sentencing and Mediation 81

The Saskatchewan Indian Justice Review Committee reached a similar conclu-

sion.23 Support for direct consultation with the community has also come from
the judiciary. Lilies J. of the Yukon Territorial Court stated in R v. J.A.P.:24
There are many benefits to be gained from citizen and community participation in
sentencing and dispositions. Such participation reinforces the socialising effect of the
criminal law upon many persons in the community. It strengthens the community fo-
cus tending to reduce crime and enhance[s] community interest in the administration
of justice. The educative impact of community dispositions cannot be overstated.25

1997 CanLIIDocs 126

Stuart J., of the same court, echoed these sentiments when he commented,
It] he formal, professional justice system must acquire greater confidence and
trust in community knowledge, judgment and instincts."26
Field work conducted in Saskatchewan and Manitoba disclosed significant
local interest in community sentencing participation on the basis of intimate
knowledge of the victim and offender. Donald McKay Jr., a Cree man from
Cumberland House, Saskatchewan explained:
Well, one of the biggest things I believe in with the sentencing circle is the community
knows the person that has committed whatever kind of crime or whatever it was. We
... know the accused and we know the victim. We know him I think far more than the
court system, the judge or the lawyers ... probation officers or social services [employ-
ees] that come in. We know him more than anybody else. I think we can better deal
with these people 27
Feelings of estrangement from non-resident judges and probation officers were
voiced together with cries for local participation. Harry Morin, a Cree man from
Sandy Bay, Saskatchewan stated:
Well with promising to the probation officer or the magistrate or anything, you only
see him once a month, you don't care, you know, "Oh I'll get away with this, I'll get
away with that, they're not going to know." Well of course nobody knows because
they're gone, you don't see them until the next court date. Here, he knows the people
that are involved, and he knows the people that care and they keep an eye, and they

23
Saskatchewan, Saskatchewan Indian Justice Review Committee, Report of the Saskatchewan
Indian Justice Review Committee (Regina: Queen's Printers, 1992). At 41, the Committee
stated:

In order to empower aboriginal communities and reduce feeling of alienation,

communities must be given an opportunity to become involved in, and take
greater responsibility in community interaction with, the criminal justice system.
Changes in sentencing or remand practices to recognize community-based ap-
proaches cannot succeed without the full participation and support of the judici-
ary at all levels and of Crown counsel.
24 (1991), (Y. Terr. Ct.) [unreported].
25
Ibid. at 12.
26
R v. D.N. ,[1993] Y.J. No. 195 (Q.L.) (Y.Terr. Ct.).
27 Interview with Donald McKay Jr. (13 December 1994) Cumberland House, Saskatchewan.
82 MANITOBA LAW JOURNAL VOL 25 No 1

tell him that right in the circle. If you ever need any help, if you need somebody to talk
to, if something is troubling you, we're available. And if you don't have a phone, you
know, and a lot of times the probation officers won't accept a collect call, what do you
do? When the pressure gets so tough. Do you just say, to hell with it? Well basically
that's what the system is doing. Here, you have your community of people, you know
who is there, you know who you can talk to. If something is bothering you, you go.2s

Local sentencing and mediation participation were seen as means of community

empowerment. When asked if the Sentencing Circle Committee was going to

1997 CanLIIDocs 126

have an impact on, and make a difference to, Cumberland House, Chairperson
Cyril Roy commented:
Well that's what I'm hoping for and I'm sure I'm not the only person hoping for that.
At least that might help our community and looking at these people coming to the
sentencing circle [committee], they respond to the people that are in that circle, and
I'm sure that ... in the future there's more people ... being involved in the circle. Be-
cause that's the only way we can keep our community a little stronger and keep it go-
ing.29

Given this clear interest in enhancing community participation, how might it be

facilitated?
A number of community sentencing approaches have been employed in
aboriginal communities across Canada. At the Workshop on the Role of Crown
Counsel in an Aboriginal Context conducted during September 1994 in Van-
couver, prosecutors from across Canada30 reported on community sentencing
initiatives within their jurisdictions.31 Circle sentencing was being used exten-
sively in the Yukon and to a lesser extent in Quebec, Manitoba, and Sas-
katchewan. Allowing local elders or other community representatives to advise
judges on sentencing is common in the Yukon and the Northwest Territories. A

28
Interview with Harry Morin (19 October 1994) Sandy Bay, Saskatchewan. This sense of
estrangement between court personnel and community members was also evident in the
comments of Greg Bragstad, a Sandy Bay resident and sentencing circle participant.".. be-
cause here especially the judge flies in from La Ronge. He's here at 8:00 [a.m.] and he's
gone [later that day]. The community members are saying: we don't want this kind of [of-
fender] action in our community, so it puts more onus on the person than the judge saying
it." Interview with Greg Bragstad (19 October 1994) Sandy Bay, Saskatchewan.
29 Interview with Cyril Roy (12 December 1994) Cumberland House, Saskatchewan.
30
These included Rodney Garson of the Yukon, Pierre Rousseau of the Northwest Territo-
ries, Pierre Desrosiers of Quebec, Robin Ritter of Saskatchewan, George de Moissac of
Manitoba, and Jim Langston of Alberta.
3 ' J. Bowers & P. Rousseau, "Workshop on the Role of Crown Counsel in an Aboriginal
Context Draft Report," (Vancouver, B.C., 1994) [unpublished] at 3-7.
 Aboriginal Community Sentencing and Mediation 83

community-based model of mediation/diversion is considered to be developing

in Saskatchewan and Alberta.32
In the six communities studied, several community sentencing and media-
tion projects were discovered. Sandy Bay is the first community in Saskatche-
wan to use formal sentencing circles; these began to be used in the summer of
1992 and continue to be developed and refined. A committee was also formed
to make sentencing recommendations on cases referred by the court. Pelican

1997 CanLIIDocs 126

Narrows, Saskatchewan held its first sentencing circle in the spring of 1994.
Apparently, the local band's initiative led to the establishment of a sentencing
circle committee. Several cases have been referred to the committee, which
then conducted a sentencing circle in Cree in the absence of the judge. This
process resulted in sentencing recommendations to the court.
Cumberland House, Saskatchewan has experienced the introduction of cir-
cle sentencing at the Provincial Court and has formed a sentencing circle com-
mittee. It functions both as a sentence advisory committee, providing the court
with community recommendations on sentencing for cases referred by the
court, and as a mediation committee, dealing with adult and young offender
cases referred by the RCMP or the court. At Hollow Water, Manitoba, Com-
munity Holistic Circle Healing (CHCH) provides holistic treatment for sexual
assault victims and victimisers. This process intersects with the provincial court
system, initially through CHCH assessment team members providing sentencing
reports to the court sitting in Pine Falls (located 100 kilometres south of Hollow
Water); and then, aided by a protocol with the provincial Department of Jus-
tice, through the introduction of circle sentencing at Hollow Water in 1993.
Waywayseecappo, Manitoba has experienced introduction of the Elders' Advi-
sory Panel in 1994. Local elders sit beside the presiding judge and advise on
sentences. At Pukatawagan, Manitoba, the local Justice Committee conducts
mediation of cases referred from the RCMP, the court, and local community
members. They also sit with the presiding judge in court and advise on sen-
tences.
In an effort to facilitate analysis of the various initiatives across Canada,
these approaches are grouped into the following models:

(i) Circle sentencing;

(ii) The Elders' or community sentencing panel;
(iii) The sentence advisory committee; and
(iv) The community mediation committee.

32
Although the draft report represents only a summary of the personal experiences of prose-
cutors from some of Canada's provincial and territorial jurisdictions, these comments serve
as a guide to the range of sentencing approaches being used within aboriginal communities.
84 MANITOBA LAW JOURNAL VOL 25 NO 1

These models will be considered individually. Of the four, circle sentencing has
received the most judicial, academic, and media attention.

B. Circle Sentencing
1. Altering Conventional Court Setting and Practice
The conventional sentencing hearing involves interaction between defense,

1997 CanLIIDocs 126

Crown counsel, and judge. Positioned in the front portion of the courtroom,
these participants are physically separated from lay members of the community
(often by a bar dividing the court room), as well as symbolically separated, by
their manner of dress and familiarity with legal process and language. In con-
trast, Stuart J. described in Moses33 the physical setting of that sentencing circle:
For court, a circle to seat 30 people was arranged as tightly as numbers allowed. When
all seats were occupied, additional seating was provided in an outer circle for persons
arriving after the "hearing" had commenced.

Defense sat beside the accused and his family. The Crown sat immediately across the
circle from defense counsel to the right of the judge. Officials and members from the
First Nation, the RCMP officers, the probation officer and others were left to find their
own "comfortable" place within the circle 34

Although the physical setting of circles might vary between judges, communi-
ties, and jurisdictions, commonality exists between the circles 'examined. All of
the circles featured the offender, judge, a Crown representative, and a number
of influential and respected local community members. Other participants usu-
ally included the victim, defense counsel, and family members of the offender
and victim. Most of the circles observed during this study had between 20 and
30 participants.
The circle setting promotes a sense of informality and equality among par-
ticipants.35 During a Saskatchewan sentencing circle' at the Kinistin Reserve
Community Hall in September 1993, participants were observed drinking cof-

33
Supra note 1.
34
Ibid. at 356.
35
Judge Stuart in Moses, supra note 1 at 357, described the egalitarian effect of the circle set-
ting on participants:

The circle significantly breaks down the dominance that traditional court-rooms
accord the lawyers and judges. In a circle, the ability to contribute, the importance
and credibility of any input is not defined by seating arrangements. The audience
is changed. All persons within the circle must be addressed. Equally, anyone in the
circle may ask a direct question to anyone.
36
R. v. Thomas ( 3 December 1993), Kinistin Reserve (Sask. Prov. Ct.) [hereinafter Thomas],
which was the first sentencing circle within the Melfort area provincial court circuit. Judge
Eric Diehl of the Provincial Court of Saskatchewan presided at the circle.
 Aboriginal Community Sentencing and Mediation 85

fee, smoking, and keeping their hats on practices forbidden in conventional

court. This informality facilitated an interchange of opinions and information
within the circle.37
Robin Ritter of La Ronge, Saskatchewan,38 one of the first defense counsel
in Saskatchewan to be involved in circle sentencing, described the evolving
practice of circle sentencing in northern Saskatchewan:
The people take their places in the circle and the judge, or the person organising the

1997 CanLIIDocs 126

circle, will usually ask one of the elders to say a prayer or to perform the sacred Sweet
Grass Ceremony. All religious beliefs are tolerated and welcomed. Everyone in the cir-
cle has the chance to talk or to remain silent. The members of the circle discuss the
offender and his crime until they all agree on what his sentence should be. The judge
then imposes that sentence according to law.39
This "consensus-building" approach can be contrasted with the approach which
was used by presiding judges at Pukatawagan, Manitoba. According to lawyer

37 This sense of equality may be hindered by changing the physical setting. R. v. C.S. (9 Janu-
ary 1995), Winnipeg (Man. Q.B.) [unreported] [hereinafter Winnipeg circle] provided an
interesting insight. The chairs had initially been set in a circle with no other furniture in
place. Shortly before the commencement of the circle, apparently at the request of the
judge, a table was moved in front of the chair designated for the judge. Some in attendance
commented on the effect of special arrangements for the judge. Indeed, the added table
gave the impression of setting the judge apart from the rest of the circle. Although one of
the reasons for the presence of the table may have been to allow the judge to make notes,
this difference in treatment was noticed by those in attendance.
38
Employed by the Saskatchewan Legal Aid Commission in La Ronge until February, 1994,
Ritter is now employed by the Saskatchewan Department of Justice as Regional Crown
Prosecutor for north-east Saskatchewan.
39 R. Ritter, "Sentencing Circles" (La Ronge, Saskatchewan, 1993) [unpublished] at 2. Also
see S. Davies, "Experiences with Circle Court" (Paper presented to the Northern Justice
Society Conference in Kenora, Ontario, 1993) where the author, a probation officer with
extensive involvement in circle sentencing, summarised the practice followed in the Yukon:

The basic process for a "circle court" is the same from community to community.
The judge acts more as a chairperson or mediator in some cases, and sits in the
circle with everyone else ... . Initially, the Judge or a member of the support group
will welcome people to the circle court and introductions are made around the
circle to assist the court recorder and familiarize people with those present. The
Crown will present the circumstances of the offence, the community perception of
the seriousness of the crime and make submissions as to sentence ... . The mem-
bers of the circle are asked by the judge to consider the problem and possible solu-
tions. This allows the community to become specific when talking about the
needs, strengths and resources available for the individual [offender] before them.
The accused will be asked to address the circle and often speaks with much emo-
tion and insight into their situation. If the victim is present, they are asked to
speak to the circle.
86 MANITOBA LAW JOURNAL VOL 25 NO 1

Joyce Dalmyn,40 the practice of Manitoba judges is to listen to sentence recom-

mendations from circle participants and then indicate their decision. These
judges took a less active role in facilitating the circle and seeking a consensus.
Such differences suggest that the influence of local circumstances on circle
sentencing development led to unique practices in each community.41 Judicial
flexibility and accommodation of local customs and practices have proved to be
crucial in the development of circle sentencing within specific communities. As

1997 CanLIIDocs 126

stated by Bayda C.J.S. in his dissenting judgment in R. v. Morin:42
The actual conduct of the circle should be in the control of the judge. But in exercis-
ing that control he or she should be sensitive to the cultural tenets and customs of the
community in question. It is good sense to make whatever accommodations are neces-
sary, within reason, to make the circle as effective as it possibly can be.43

Although much interest has been expressed over the physical changes to court
procedure brought about by circle sentencing, the legal status and effect of rec-
ommendations produced by sentencing circle participants need to be examined.

2. Status of Circle Recommendations in the Criminal Code

Judicial analysis of the role of circle sentencing has been varied. In R. v. Rich
(S.) (No.1),44 O'Regan J. of the Newfoundland Supreme Court (Trial Division)
viewed its role within the existing system as "a form of diversion in the sen-
tencing process [which] strongly suggest[ed] alternatives to incarceration.s45
Desjardins J. of the New Brunswick Provincial Court described the sentencing
circle in R. v. Nicholas46 as "embracing the trappings of a conventional sen-
tencing hearing and the sacred teaching of the native way of life" and com-
mented that this process was "a small but tangible beginning of a bridge across

40 Interview with Joyce Dalmyn (28 January 1995) Winnipeg, Manitoba. Dalmyn was em-
ployed as Director of Manitoba Legal Aid in The Pas and had been active in the develop-
ment of sentencing initiatives at Pukatawagan.
41 See B. Stuart, "Circles into Square Systems: Can Community Processes be Partnered with
the Formal Justice System?" (Whitehorse, 1995) [unpublished] at 2 where Stuart J. ex-
plained:

I am reluctant to set out the procedures, guidelines, the mechanics of Circle Sen-
tencing. Reluctant to do so because there is, no single model. Each community
adapts Circle Sentencing to fit their particular circumstances. A principal value of
Circle Sentencing lies in its flexibility to bend to the vision of each community.
42
[1995] 4 C.N.L.R. 37 (Sask. C.A.) [hereinafter Morin].
43
Ibid. at 74.
44 (1994), 116 Nfld. 6t P.E.I.R. 293.
45 Ibid. at 297.
46 (1996), (N.B. Prov. Ct.) [unreported] [hereinafter Nicholas].
 Aboriginal Community Sentencing and Mediation 87

the cultural divide, "4' In Morin,48 Milliken J. of Saskatchewan's Court of

Queen's Bench likened a sentencing circle to a pre-sentence report:
A pre-sentence report is usually done by a probation officer who interviews the persons
necessary to give him or her the information covered in the report. It appears to me
that the same type of information is obtainable at a sentencing circle, where the per-
sons who would give the information to the probation officer for a pre-sentence report
are present in the circle. If a pre-sentence report can be used by a judge to gain infor-
mation about the offender, then why can't a sentencing circle be used for the same rea-

1997 CanLIIDocs 126

son? I am not aware of any restrictions imposed upon a judge when he or she decides
to request a pre-sentence report, so why should there be restrictions on judges about
ordering a sentencing circlej49

In Moses,50 Stuart J. described the role of circle sentencing as enhancing sen-

tencing options, affording greater concern for victims, shifting the focus from
punishment to rehabilitation, and meaningfully engaging communities in shared
responsibility for sentencing decisions.
Despite these general comments on the role and advantages of circle sen-
tencing, there has been little judicial consideration of the legal impact and sig-
nificance of sentencing circle recommendations within the sentencing frame-
work of the Criminal Code. In an interview, Dutil J. of the Court of Quebec
(Criminal and Penal Division)51 viewed circle sentencing as an adapted sen-
tencing hearing within the Criminal Code system:
This is an experiment. It's a way to help me make sentences much like I use pre-
sentencing reports prepared by probation officers. As such, the use of sentencing cir-
cles did not require any legislative change. A judge can use any normal and legal
means to find acceptable sentences."

Available judicial comment suggests circle sentencing is grounded in the court's

broad sentencing discretion which retains for the judge ultimate decision-
making power. Sherstobitoff J.A. of the Saskatchewan Court of Appeal stated in
Morin:53
Since there is no provision in the Criminal Code for the use of sentencing circles, it is
implicit in their use ... that when sentencing circles are used, the power and duty to

47
Supra note 46 at para. 1.
48
[1994] 1 C.N.L.R. 150 (Sask. Q.B.).
49
Ibid. at 153.
5o Supra note 1 at 356.
51
Judge Dutil was the first judge to introduce sentencing circles into northern Quebec and
the presiding judge in two reported sentencing circle cases, R. v. Aluka (1993), D.L.R.(4d)
732 [hereinafter Aluka] and Naappaluk, [1994] 2 C.N.L.R. 143 [hereinafter Naappaluk].
52
M. Nemeth, "Circle of Justice: Northern Villagers Take Part in Sentencing" Macleans (19
September 1994) at 52.
53
Supra note 42.
88 MANITOBA LAW JOURNAL VOL 25 NO 1

impose a fit sentence remains vested exclusively in the trial judge. If a sentencing circle
is used, and it recommends a sentence which is not a fit sentence, the judge is duty
bound to ignore the recommendation to the extent that it varies from what is not a fit
sentence 54
Despite the judge's ultimate sentencing discretion, a prominent goal of circle
sentencing is to promote both community involvement in conducting the circle
and consensus among participants during the circle. The interplay between
community involvement and decision-making on the one hand and judicial

1997 CanLIIDocs 126

sentencing discretion on the other was described by Desjardins P.C.J. in Nicho-
las: 55
It is very important that the judge be willing not only to convene the circle but to al-
low the development of the circle to originate primarily from the community. He or
she must be prepared to relinquish his or her mantel of power and control with only
one exception: the ultimate decision, and he or she should be prepared to adopt the
decision of the circle so long as it falls within the scope of a fit and proper sentence. If I
had retained control of who participated and the form of the process, the community
participation would have been perfunctory.56
However, given the judge's ultimate sentencing power, confusion might arise
among circle participants asked to shape an offender's sentence without final
authority to impose it. Mary Cmkovich reported such confusion at the sen-
tencing circle in R. v. Naappaluk: 57
Judge Dutil attempted to clarify what his role and the roles of the other participants
would be. He explained that everyone in the circle was "on the same level" and
"equal." There was no doubt some confusion was caused when after stressing this
equality, he explained that he was "not obliged to follow advice" given by the circle
members.
On one hand the judge was inviting the community to participate with him in
constructing a sentence for the accused, but on the other hand, he retained the ulti-
mate authority by stating that he was not obliged to follow the "advice" of the circle
when deciding the sentence for Jusipi Naappaluk.
The idea of the circle is to "break down the dominance that traditional court
rooms accord lawyers and judges." By referring to the group's work as "advice" yet

54 Supra note 42 at 48. An interesting contrast can be found in R. v. John (1995), (Alta. C.A.)
[unreported] at 6 where Cote J.A. stressed the effect of appellate sentencing guidelines
both on a judge and on a sentencing circle: "[w]hat binds a sentencing judge binds him or
her with or without such community involvement. We think that if one wants to regard the
sentencing circle or some similar body as a being the sentencing body, it also is bound." It is
not clear whether the court meant to raise the possibility of decision-making power by a
sentencing circle or simply was unaware of the process followed.
55
Supra note 46.
56
Ibid. at para. 19.
57
Supra note 51.
 Aboriginal Community Sentencing and Mediation 89

telling them they are equal to the judge, presented a mixed message and questioned
how "equal" the members really were ss

Practically, however, the sentencing decision has not always been ."made" by
the judge. Of the 60 to 70 sentencing circles conducted by Judge Fafard in
northern Saskatchewan, he claimed to have never rejected a circle consensus.
He believed that, as a result, community members were enjoying a significant
role in decision-making at court.'

1997 CanLIIDocs 126

Confusion existed over the extent of agreement required to constitute a cir-
cle "consensus." Ritter, in summarising the practice of circle sentencing in
northern Saskatchewan, equates consensus with unanimity.60 However, the cir-
cle in Morin61 showed a "consensus without unanimity" as the Crown prosecu-
tor actively opposed the proposed sentence 62 Saskatchewan field work con-
ducted at Sandy Bay, Cumberland House, and Pelican Narrows failed to iden-
tify a sentencing circle in which the Crown (represented by a prosecutor or the
RCMP) opposed the consensus reached by other circle members.63 This was
partly the result of a reluctance by judges in conducting circles against Crown
opposition.64 To require unanimity within a circle in all cases, however, ap-
peared unrealistic, given the potential of a lone recalcitrant participant ob-

58 M. Cmkovich, "Report on the Sentencing Circle in Kangiqsujuaq" (Ottawa, 1993) [un-

published] at 6.
59 Interview by telephone with Judge Claude Fafard (16 December 1994). Judge Fafard ex-
plained:

[The community] may not have the final say because I can't give it to them, but
I'm giving them a role in the decision-making process and they're genuinely get-
ting to believe that, if it's within reason, I won't interfere with it because I never
have interfered with it. I've never had reason to disagree with a recommendation.
60
Ritter, supra note 39 at 2.
61
Supra note 48.
62
Ibid. at 156. In delivering sentence, Milliken J. stated, "[f]inally, a consensus was reached
with everyone agreeing except the crown prosecutor who would not consider anything less
than seven to nine years imprisonment."
Constable Murray Bartley of Cumberland House advised that he was unhappy with the
result of one sentencing circle held for a young offender. However, it was not clear whether
he verbally opposed the circle consensus at the sentencing circle. [Interview with Cst.
Murray Bartley (14 December 1994) Cumberland House.]
64 Interview with Constable Brian Brennan (15 November 1994) Sandy Bay, Saskatchewan.
In the Yukon, the agreement of the crown also appears to be important as Hudson J. com-
mented in R. v. Lucas (1994), (Y. Ten. Ct.) [unreported] at 3 that "this was not a sen-
tencing circle in the cultural sense that has been adopted in other courts; but those are
achieved [with] some preparation and the agreement of the prosecuting authorities, which
was not the case here."
90 MANITOBA LAW JOURNAL VOL 25 NO 1

structing an otherwise acceptable and workable recommendation.65 Whether

unanimous or not,66 a viable consensus appeared to depend on the active sup-
port of community representatives, including the victim, the Crown, the police,
the offender, and the judge. The importance of Crown support, whether for in-
dividual sentencing circle decisions or for overall community sentencing deci-
sions, was obvious. Judge Kopstein of the Manitoba Provincial Court, who fa-
cilitated the involvement of local elders in the sentencing process in Rousseau

1997 CanLIIDocs 126

River, Manitoba during the 1970's, recognised the importance of Crown sup-
port for such an initiative.67 Constable Brian Brennan of Sandy Bay also viewed
Crown support for specific sentencing circles as essential.68

3. Criteria for Circle Sentencing

Circle sentencing requires considerable expenditure of court time and re-
sources. In R. v. Johnson,69 Finch J.A. of the Yukon Court of Appeal expressed
concern over an absence of criteria guiding the selection of circle sentencing
cases:
Sentencing circles [as] employed in this case took far longer than the sentencing proc-
ess prescribed in the Criminal Code and it was apparent that this process could not be
used in every case ... . If judges proposed to use sentencing circles, they should estab-
lish and publish rules so that the Crown and the accused would know the kinds of
cases to be tried in that way and what to expect ... . It would be wrong if judges of the
court should follow different procedures on such a common question as sentencing.70

65
In Morin, supra note 42 at 41, Bayda C.J.S. wrote in dissent:

The need for a consensus is, of course, in the tradition of the healing circle, the
progenitor of the sentencing circle. But a rule that renders a sentencing circle re-
sult nugatory in the absence of a consensus is much too harsh. A recalcitrant or
intransigent participant who, it turns out, may have motives inconsistent with the
success of a circle should not be effectively given a veto over the proceedings.
66
All sentencing circles were open to the public. As a result, people with no interest in the
specific cases or knowledge of the offenders or victims involved would not be prevented
from participating. It was doubtful that solitary opposition by such a community member
would nullify a consensus of all other circle participants.
67
Interview with Judge Robert Kopstein (31 May 1995) Winnipeg, Manitoba.
68
Brennan interview, supra note 64.
69
(1994), 31 C.R. (4`h) 262 (Y. Terr. C.A.).
70
Ibid. at 294. More recently, Prowse J.A. of the same court echoed these concerns in R. v.
Johns, [1995] Y.J. No. 132 (Q.L.) (Y. Terr. C.A.) [unreported] at para. 24:

In my view, however, circle sentencing is no longer in its embryonic stages, par-

ticularly in the Yukon and in the northern parts of this province. That being so,
further heed must be paid to the recommendation of [this court] in the R. v.
Johnson decision... that rules or alternatively, well-publicized guidelines for circle
 Aboriginal Community Sentencing and Mediation 91

Time limitations might be a significant obstacle to increased use of circle sen-

tencing. During the circles considered in this study, no sentencing circle took
less than two hours. With heavy court schedules in many rural and northern
court points,71 time requirements will necessitate selective use of circle sen-
tencing.72
In an effort to narrow the range of cases to be heard by circle sentencing,
Fafard J. in R. v. Joseyounen73 set out the following criteria:74

1997 CanLIIDocs 126

(i) The accused must agree to be referred to the sentencing circle.
(ii) The accused must have deep roots in the community in which the circle is held
and from which the participants are drawn.
(iii) There are elders or respected non-political community leaders willing to partici-
pate.
(iv) The victim is willing to participate and has been subjected to no coercion or pres-
sure in so agreeing.
(v) The court should try to determine before hand, as best it can, if the victim is sub-
ject to battered woman's syndrome. If she is, then she should have counseling and be
accompanied by a support team in the circle.
(vi) Disputed facts have been resolved in advance.
(vii)The case is one which a court would be willing to take a calculated risk and depart
from the usual range of sentencing.75

sentencing, should be established by Territorial Court judges, with the assistance

of those with expertise in the process.

71 Bartley interview, supra note 63. Constable Bartley described a recent court docket day at
Cumberland House, Saskatchewan that included twenty-two accused persons appearing
before the court on a total of 35 charges. He considered this to be moderate. On trial days,
he said as many as 5 to 6 trials have been set.
7z
This assumes no substantial increase in court resources and available court time.
73 [1995] 6 W.W.R. 438 (Sask. Prov. Ct.).
74 In Joseyounen at 439, he explained his motivation for formalising these guidelines:

In deciding whether or not to hold a sentencing circle the court is exercising a ju-
dicial function. That means that the decision must not be made arbitrarily; it must
be made with reference to certain criteria. Those criteria must be such that the
public can be made aware of them. A democratic society cannot suffer a situation
where a reasonably well-informed person with the application of due diligence
cannot discover what rule [what law] is being applied ... . These criteria are not
carved in stone, but they provide guidelines sufficiently simple for the lay public to
understand, and are also capable of application so that our decisions are not being
made arbitrarily. It is imperative that the public, aboriginal and others, be able to
know and understand what is happening in the development of sentencing circles:
the credibility of the administration of justice depends on it.
75
Supra note 73 at 442-446.
92 MANITOBA LAW JOURNAL VOL 25 NO 1

Although not limiting the application of circle sentencing to this extent, Des-
jardins J. in Nicholas,76 Milliken J. in Morin," and Dutil J. in R. v. Aluka,78
viewed as prerequisites a desire for rehabilitation by the offender and a commu-
nity prepared to provide offender assistance and support both during. and after
sentencing. In the appeal judgment of Morin,79 Sherstobitoff J.A. refused to lay
down specific guidelines governing the decision to form a sentencing circle;
however, he commented that the criteria employed by Milliken J. at trial level

1997 CanLIIDocs 126

sentencing "could apply to almost any case.i80
An alternative to court-directed selection criteria is protocol negotiation,
between communities and provincial departments of justice. An example of this
is the Protocol of the Katapamisuak Society at the Poundmaker Cree Nation in
Saskatchewan,81 which appears to incorporate the criteria later set out by Fafard
J. in Joseyounen.82 It established a local justice committee to screen sentencing
circle requests from offenders, police, Crown prosecutors, and judges. Another
example is the Protocol for Manitoba Department of Justice Support for the
Community Approach of the Hollow Water Community Holistic Circle Healing
in Manitoba.83 Although not specifically dealing with circle sentencing criteria,
this protocol established guidelines for Crown consideration of community-
based sentences for sex abusers. Further, it facilitated the introduction of circle
sentencing at Hollow Water.

4. Appropriateness of Circle Sentencing for Offenses Involving Domestic

Violence
Sentencing circles have considered a wide range of serious offenses including
aggravated assault,84 assault causing bodily harm,85 robbery with violence,86 sex-

76 Supra note 46.

77
Supra note 48 at 152.
78
Supra note 51 at 735-738.
79 Supra note 42 at 7.
80 Ibid. at 46.
81 Protocol of the Katapamisuak Society at the Poundmaker Cree Nation in Saskatchewan.
North Battleford, 1993 [unpublished].
82 Supra note 73.
83
Protocol for Manitoba Department of Justice Support for the Community Approach of the
Hollow Water Community Holistic Circle Healing. Brandon, Manitoba, 1991 [unpub-
lished].
84
R. v. Manyfingers (1996), 191 A.R. 342 (Alta. Prov. Ct.) [unreported].
85
R. v. Webb,[1993] 1 C.N.L.R. 148 (Y. Terr. Ct.), R. v. Charleboy, [1993] B.C.D. Crim.
Sent. 7100-06 (B.C. Prov. Ct.) and R. v. C.P. (1995), (Y. Terr. Ct.) [unreported].
86
Morin, supra note 48.
 Aboriginal Community Sentencing and Mediation 93

ual assault,87 spousal assault,88 criminal harassment,89 impaired driving causing

death,90 break and enter,91 theft over $1000,92 and arson'. Although personal
circumstances of an offender have been an element considered in sentencing,
appellate guidelines may restrict the range of offenses referred to sentencing cir-
cles. As Sherstobitoff J.A. stated in Morin94: "[i]t would be futile to use a sen-
tencing circle for those cases where it is clear that the circumstances require, at
a minimum, a penitentiary term.s95 Judicial adherence to "starting point sen-

1997 CanLIIDocs 126

tences" for such offenses as sexual assault96 might hinder circle sentencing us-
age 97 As Stuart J. in Moses98 recognised, the "circle may not be appropriate for
all crimes ....i99 However, in response to the suggestion that some cases may
not be suitable for circle sentencing simply due to established sentencing tar-
iffs,100 Professor Quigley argues that, except in obvious cases such as homicide,

87 D.N., supra note 21, C.S., supra note 33 (although, in this case the judge did not accept the
recommendation from the Winnipeg circle), and R. v. Taylor, [ 1996] 2 C.N.L.R. 208 (Sask.
C.A.).
se Naappaluk, supra note 51.
89
Gingell, supra note 7.
90 R. v. Rope, [1995] 2 C.N.L.R. 209 (Sask. Q.B.). The sentence resulting from this circle was
upheld on appeal at [1995] 4 C.N.L.R. 98 (Sask. C.A.).
91 Nicholas, supra note 46.
92
Thomas, supra note 36.
97
Aluka, supra note 51.
94
Supra note 42.
95
Ibid. at 46.
96 An approach established by the Alberta Court of Appeal in R. v. Sandercock (1985), 22
C.C.C. (3d) 79 (Alta. C.A.).
97 The effect of Court of Appeal "starting point sentences" on lower courts was reviewed at
length by the Supreme Court of Canada in R. v. McDonnell, [1997] 1 S.C.R. 948 [unre-
ported], a sexual assault case from Alberta. Although acknowledging the propriety of ap-
pellate "starting point sentences" for specific offences, Sopinka J. speaking for the majority,
held that an appellate court should not interfere with a lower court's sentence unless that
sentence was demonstrably unfit. Deviation from an appellate "starting point" was said to
be a factor in this determination but, failing a finding of demonstrable unfitness, such de-
viation would not result in appellate intervention.
98
Supra note 1.
99
Ibid. at 370.
100
This position was taken by Grotsky J. in R. v. Cheekinew (1993), 80 C.C.C. (3d) 143 (Sack.
Q.B.) at 149-150 :
Clearly: If the trial judge is, following conviction of the accused, of the view, on
the whole of the evidence, that the offender must receive a punitive term of im-
prisonment of two years or more, then, as such a sentence cannot, by virtue of the
94 MANITOBA LAW JOURNAL VOL 25 No 1

the broad discretion open to a sentencing judge makes pre-determination of

sentence length difficult:
[T]hese restrictions [on circle sentencing] put the cart before the horse. It is only
during the process itself that it can be learned whether the offender is remorseful and
motivated to change, whether the community is willing to provide the necessary sup-
port and, perhaps most fundamentally, what is the appropriate sentence for this of-
fender. to'

1997 CanLIIDocs 126

Similarly, Desjardin J. in Nicholas102 rejected the notion that sentencing circles
be restricted to certain offenses where the normal range of sentence would be
less than two years. He viewed "the nature of [an] offence and possible range of
sentence" as factors to be considered in, but not determinative of, a sentencing
circle application.103
Regardless of the impact of appellate sentencing tariffs, caution may be re- -
quired before selecting cases involving domestic violence for circle sentencing.
Such offenses have been characterised as involving historic power imbalances
between offenders and victims. Feminist scholars, in particular, have questioned
the application of mediation to cases involving wife abuse and, given the
prevalence of domestic violence, mediation in criminal offenses may also be
problematic. Martha Shaffer argues that historical power imbalances are not
easily overcome:
Since experts estimate that one in three women is battered by her spouse, the problem
of mediating domestic violence cases is not insignificant. It is difficult to imagine a
situation in which the power imbalance between the spouses is more pronounced and
the potential consequences of mediation more disastrous. It is grossly unrealistic to as-
sume that women who have been subjected to a pattern of repeated abuse will sud-
denly be able to face their abuser.104
In addressing the application of such power imbalances to circle sentencing,
Rupert Ross suggests it might be inappropriate to conduct a sentencing circle
without first identifying and addressing these imbalances.`05 Such an approach

provisions of s. 737 of the Criminal Code, be coupled with a probation order, a

submission should not, in these circumstances, be heard for the establishment of a
sentencing ... circle.

101 Supra note 9 at 290.

102 Supra note 46.
103 Ibid. at para. 21.

104 See M. Shaffer, "Divorce Mediation: A Feminist Perspective" (1988) 46:1 U. T. Fac. L.
Rev. 162 at 182.
105
Interview by telephone with Rupert Ross (4 January 1995). Also see Cmkovich, supra note
58 where the author described power imbalances which occurred during an Inuit sentenc-
ing circle in northern Quebec:
 Aboriginal Community Sentencing and Mediation 95

to victim support was practiced at Hollow Water by CHCH in serious child

sexual abuse cases. The offender and victim were assigned separate support
teams and were not brought together until such time as they could face each
other on an equal footing.106 When a sentencing circle was held the victim was
encouraged, but not required, to attend. If the victim chose to attend the circle,
a specific worker was provided for support.107 The Hollow Water approach
brought into question the appropriateness of circle sentencing for cases involv-

1997 CanLIIDocs 126

ing domestic violence without prior intervention.108
In contrast to domestic assault cases, a sentencing circle might be more
beneficial—and potentially less threatening—to a victim who is not well ac-
quainted with the offender.109 In Morin,"° the victim and offender were strang-
ers prior to the offence. The sentencing circle appeared to have allowed the
victim to confront her assailant while "putting a human face" to him."` She also

Aside from the fact that the sentence was based on a proposal presented by the
accused, the victim could hardly, in her position, oppose such a proposal or com-
plain that it was not working. Again to suggest that her attendance [for counsel-
ling] would keep the accused honest, demonstrates, in the author's view, the
judge's misunderstanding of the life circumstances of this woman as a victim of
violence. How could this woman speak out against her husband? How could she
speak out against the mayor [and] ... others in her community [who attended the
sentencing circle]? Did the judge really believe she would speak out based on the
history of this case to date. The victim's actions or lack thereof during the circle,
demonstrated the degree of fear and deference paid to her spouse.
106
Ross interview, supra note 105.
107 Interview with Associate Chief Judge Murray Sinclair (17 January 1995) Winnipeg, Mani-
toba.
108
The approach at Hollow Water was predicated on lengthy adjournments of sentencing by
the trial court. There was a protocol in effect between the Manitoba Department of Justice
and Hollow Water that recognised the propriety of such adjournments for completion of
the healing program. However, the Alberta Court of Appeal in R v. A.B.C. (1991), 120
A.R. 106 (Alta. C.A.)had rejected the practice of lengthy adjournments for treatment
making the Hollow Water approach unlikely to be accepted in Alberta. The Saskatchewan
Court of Appeal in Taylor, supra note 87, also rejected the trial judge's decision, following a
sentencing circle, to adjourn sentencing for one year and to banish the offender to an iso-
lated island under the terms of an undertaking.
109
Ross interview, supra note 105.
110
Supra note 42.
ui At the circle, she directly challenged the offender Ivan Morin. As reported by J. Campbell,
"Morin Says Sentence Was Just" (May 1993) New Breed Magazine 3 at 4.:

Morin's victim, [a] university student ... , said she didn't hate Morin and didn't
appear looking for revenge. "I did not come here out of vindictiveness and I have
no anger towards you. I came here to challenge you in your actions." [The victim]
said what she and the rest of the community wanted was a commitment from
 96 MANITOBA LAW JOURNAL VOL 25 No 1

attained insight into the offender's personal situation and problems. "2 Although
reconciliation between parties to an offence might occur during a sentencing
circle, offenses involving historical power imbalances will continue to necessi-
tate vigilance by judges in ensuring, to the greatest extent possible, protections
of victim within the process.13 Unfortunately, such "judicial" protection might
be short-lived for victims in isolated communities since the court party routinely
leaves upon adjournment, making community-based support for such victims

1997 CanLIIDocs 126

essential.

5. Deterrence through Circle Sentencing

A central goal of sentencing in Anglo-Canadian law is deterrence, both specific
and general.14 Although incarceration has been perceived as a predominant
means of achieving deterrence within the prevailing system, Stuart J. in R v.
Washpan115 commented that community-based options also deter crime:
A severe sentence is not the only punitive sanction that serves to achieve general de-
terrence. Other forms of punishment, either in lieu of jail or in addition to jail, de-
pending upon the crime, offender, and community, may be as effective in achieving
general deterrence and at the same time be less disruptive of other sentencing objec-
tives.116

Morin to break his cycle of crime. "I need a commitment from you to better your-
self. It can't come from anyone else here," [the victim] said.

112 M. Miller, "Forgiveness Replaces Blame: Sentencing Circle Experiment in Saskatoon"

(1993) 13:1 St. Thomas More College Newsletter 4 at 5.
113
Caution respecting offender/victim power imbalances, in the context of a request for a
community-based sentencing hearing, was also expressed by Stach J. of the Ontario Court
of Justice (General Division) in R v. A.F. ,[1994] O.J. No. 2865 (QL) at 3. The victim had
become an outcast from her community and had moved to southern Ontario following her
disclosure, leading His Lordship to comment:

The success of a community-based sentencing approach depends very much upon

the active participation of and sincere commitment of each participant. ... So too,
where the nature of the crime bespeaks an imbalance of power as between the
victim and the offender, great care ought to be taken ... . The perspective of the
accused, the convenience of witnesses and the perspective of the community are
not the only considerations. The rights of the public, the perspective of the victim,
and the Court's duty to ascertain the truth are all competing and sometime com-
peting considerations. In cases of sexual assault, for example, an imbalance of
power as between the offender and the victim is commonplace. Where the imbal-
ance is not offset by some other visible community support for the victim, the logic
of a community-based sentencing hearing is dissipated.
114
R. v. Morrissette (1970), 1 C.C.C. (2d) 307 ( Sask. C.A.) at 310-311.
Ils
(1994), (Y. Terr. Ct.) [unreported].
116
Supra note 115 at 3.
 Aboriginal Community Sentencing and Mediation 97

Community members at Hollow Water argued that deterrence of sexual of-

fenses could be accomplished without jail as this form of punishment reinforced
silence and promoted the cycle of violence by reducing disclosures of abuse."'
The impact of the mere presence of community members on offenders also
promotes deterrence.11e In D.N.,119 Stuart J. commented, "As any offender who
has been through a [Sentencing] Circle and community rehabilitation sentence
will attest, jail is a shorter, less demanding, and less traumatic sentence.s120 The

1997 CanLIIDocs 126

deterrent effect of circle sentencing was described by Greg Bragstad, a Sandy
Bay man who had participated in a number of sentencing circles:
That was the decision of the sentencing circle, and that was the community that de-
cided that. And so it has stopped two people from doing crime because of it ... . They
[the two young offenders sentenced in the circle] haven't been in court since so that
tells me they're not doing anything .... I think [the sentencing circle] gave them time
to think about what they did and it gave them the message that the community is not
going to tolerate it and, again, that gives the community some ownership—rather than
just having a judge fly in and you go to jail, you do this, you do that. I2l

Shaming has been a key element in the success of the circle as deterrent.
Professor John Braithwaite argues that the most effective way to deter crime in
a community is through an organised form of shaming by the local community
while at the same time reintegrating offenders into that community.122 Consta-
ble Brian Brennan, an RCMP officer stationed in Sandy Bay who has been in-
volved in a number of sentencing circles, agrees with this deterrent effect:

117
Community Holistic Circle Healing Assessment Team, CHCH. Position on Incarceration
(Hollow Water, Manitoba, 1993) [unpublished]. The Assessment Team expressed their
frustration at 2-4:

The legal system's use of incarceration under the guise of specific and general de-
terrence also seems, to us, to be ineffective in breaking the cycle of violence. Vic-
timization has become so much a part of who we are, as a people and a commu-
nity, that the threat of jail simply does not deter offending behaviour. What the
threat of incarceration does is keep people from coming forward and taking re-
sponsibility for the hurt they are causing. It reinforces the silence and therefore
promotes, rather than breaks, the cycle of violence that exists. In reality, rather
than making the community a safer place, the threat of jail places the community
more at risk....
118
See R. v. Genaille (1982), 8 W.C.B. 197 (Sask. C.A.) where the court, although not consid-
ering a sentence arrived at through a sentencing circle, commented that the offender would
be returning to his Indian community which would continue to remind him of the offence.
19 Supra note 26.
t20 Ibid. at 30.
121 Bragstad interview, supra note 28.
122 J. Braithwaite, Crime, Shame and Reintegration (Cambridge: University Press, 1989) at 54-
68.
98 MANITOBA LAW JOURNAL VOL 25 No 1

[I]t really confronts the accused a lot more ... before his community and admit Ling] he
was wrong and explain [ing] why he did it than to stand before a stranger. It's easier to
stand before a stranger for four or five minutes while the judge sentences you and be
done with it than to sit for an hour or two or maybe three and have a number of people
criticize your character and your actions and you have to try and defend yourself.123

Although judicial disagreement exists on how specific and general deter-

rence might best be accomplished, judges such as Stuart in the Yukon and Fa-
fard in Saskatchewan have recognised the power of local aboriginal communi-

1997 CanLIIDocs 126

ties to deter criminal behaviour. Working within the prevailing legal system,
these judges have used judicial discretion in sentencing to "tap into" local sys-
tems of social control, thereby assessing additional resources in their attempt to
change offender behaviour.

C. The Elders' or Community Sentencing Panel

Direct consultation with community members at sentencing was advocated by
the Law Reform Commission of Canada in 1974.124 In 1991, the Commission
developed this theme in an aboriginal context:
[L] ay assessors (Elders or other respected members of the community) ought to be
permitted by express statutory provision to sit with a judge to advise on appropriate
sentences .... Their duties would include consulting those involved and recommending
an appropriate disposition to the judge. Similar programs already exist or are being cre-
ated in some communities. The advisors' recommendations may differ from the range
of sentences established by case law, or may be contrary to general court of appeal ju-
risprudence. We see no real difficulty in this: indeed, it is because such guidelines are
on occasion inappropriate to Aboriginal communities that we make this recommenda-
tion.''

The Commission could conceive of no legal impediment to community consul-

tation during sentencing.126

123
Brennan interview, supra note 64.
124
Law Reform Commission of Canada, The Principles of Sentencing and Dispositions Working
Paper No. 3 (Ottawa: Queen's Printers, 1974) at 29 as cited in S. Zimmerman, "The Re-
volving Door of Despair: Aboriginal Involvement in the Criminal Justice System," (1992)
U.B.C. L Rev. 367. At 386 the Commission is quoted as saying:

[O]ne way of maintaining contact with the community and its sense of values is to
have individual citizens from the community sit with the judge to assist in the dis-
position and sentence. Countries such as Denmark have used this device for years
and while judges may not be enthusiastic about such a procedure, the community,
at least, seems to welcome the opportunity to participate.
125
Law Reform Commission of Canada, Report on Aboriginal Peoples and Criminal Justice:
Equality, Respect and the Search for justice (Ottawa: Queen's Printers, 1991) at 36-37.
126
Also see Zimmerman, supra note 124 at 386 where the author observed:
 Aboriginal Community Sentencing and Mediation 99

Rupert Ross describes the role of elders in the sentencing process at the
Sandy Lake reserve in northwestern Ontario:
Those three Elders have been sitting with the court since June of 1991. As I mentioned
earlier, we place a long trestle tables in such a way that they form a large square. The
judge, his clerk and his reporter occupy one side of the square. To his right are the Eld-
ers and an interpreter. Directly across from the judge is where the defense lawyers, of-
fenders and their families sit, together with probation officers and others who may wish
to address the court. The fourth part of the square is occupied by the Crown Attorney

1997 CanLIIDocs 126

and those police officers involved in the cases at hand ... . If a conviction is entered,
the next question is the sentence thought to be most appropriate. It is at this point
that the Elders have an opportunity to speak to the accused and family members, and
to make recommendations about the sentence they believe will be most productive
from a community perspective. The Elders bring to the court their knowledge of the
accused and his or her family circumstances, and their appreciation of the specific
events that might have contributed to the commission of the offence.'27

This approach was introduced in 1994 in court in Waywayseecappo, Manitoba.

The Elders' Advisory Council sat with the judge in court and provided advice
during sentencing. Court was conducted in a circle format with other partici-
pants including police, defense and Crown counsel, and the local probation of-
ficer. The elders provided the judge with information on each offender, as well
as advice on sentence.
Sentencing practices at Pukatawagan, Manitoba observed during this study
were similar to the elders' panel, although they involved members of the local
justice committee rather than elders.128 Judges sitting in Pukatawagan court had
developed a practice of consulting directly with these members. This provided
more information to the court about both offender and offence than was usually
obtained through counsel. Judges also attempted to verify defense counsel
claims about purported offender rehabilitation by consulting justice committee
members. This approach, while allowing the court to access more information,
may impede attempts at reconciliation among the offender, victim, and com-
munity by stressing the role of justice committee members as witnesses to of-

While no policy or law allows for lay assessors, none forbids them either, and cer-
tain judges have taken the initiative of instituting such practices themselves. The
formal use of lay assessors is itself not without precedent.
The use of Aboriginal Elders or other community members presents no legal
obstacle, would greatly assist non-Aboriginal judges in determining appropriate
sentences and would go at least some way toward alleviating the perception widely
held in Aboriginal communities that judges are ignorant of and insensitive to the
circumstances and needs of Aboriginal offenders.
127
R. Ross, Dancing With a Ghost: Exploring Indian Reality (Toronto: Octopus Publishing,
1992) at 167.
128 Dalmyn interview, supra note 40. The justice committee involved a mixture of elders and
younger community members.
 100 MANITOBA LAW JOURNAL VOL 25 No 1

fender behaviour, rather than as resources for the healing and support of the
offender.
Although the practices of community sentencing consultation in court have
varied between jurisdictions,129 judges, and courts, all approaches appear to be-
stow a distinct status upon elders or other community representatives within
the sentencing process. When acting in an advisory capacity to the court, the
elders assume a quasi-judicial role similar to that of the lay assessor.130

1997 CanLIIDocs 126

D. The Sentence Advisory Committee
In Rich," O'Regan J. commented that information available through a sen-
tencing circle involving a judge could also be obtained by "hearing the results of
the consensus of the community from their own sentencing circle with the ac-
cused and without the complainant and the judge.s12 This practice is employed
at Cumberland House, Sandy Bay, and Pelican Narrows. Presiding judges refer
cases to a local committee seeking a recommendation on sentence. This com-
mittee,133 in turn, meets with the offender (and sometimes the victim) before
formulating a recommendation. At Pelican Narrows, Judge Fafard began refer-
ring cases to the local sentence advisory committee in the spring of 1994. The
Peter Balantyne Band actively supports community participation by appointing
members to this committee.134 This advisory process was described by commit-
tee Co-ordinator Derek Custer:
Yes, in most cases the judge prefers that we talk with the accused as well as the victim
prior to the date of the court, the court date. So what I do is I gather up the committee
people and we sit down with the accused as well as the victim, if he or she is willing to
sit down with us, and then we make recommendations. Now once this happens, we
write down the recommendations, type them up, and then I approach the judge. And
during that date of the court, I give the recommendations to the judge. He looks at

129
See S. Yaeger, "Circle Sentencing Programs Give Yukon Indian Bands an Alternative to
Traditional Legal System," The Lawyers Weekly (1 October 1993) 12 which described a
similar approach to the Elders Sentencing Panel being used in some Yukon communities.
Lilies J. of the Territorial Court of Yukon, in R. v. J.A.P. supra note 24 at 2 stated that one
of the submissions he considered in arriving at an appropriate sentence included "evidence
and representations by Chief David Keenan, Chief of Teslin Tlingits, representing the five
clan leaders, the Tlingit Council and the community recommending a community-based
disposition instead of incarceration."
130 These were used in British admiralty courts. See Zimmerman, supra note 124 at 386.
131 Supra note 44 at 298. In this case, the court rejected the request for a sentencing circle on
the basis that the victim did not feel she could participate as she had not yet healed.
132 Ibid. at 299.
133 Described by its participants as the "sentencing circle committee" in all three locations.
134
Fafard J. December interview, supra note 59.
 Aboriginal Community Sentencing and Mediation 101

them and approves them. Once they're approved then the accused will have to follow
what we recommended.'35

He explained the specific procedure followed when meeting with offenders:

The procedure we follow is, we start off, I start off with giving the date when we're
supposed to meet and I talk to the committee and they agree, that's prior to the court
date. And we meet at a certain date, maybe a couple days before the court date, or a
week, depending on who's available in the committee. And then when we proceed

1997 CanLIIDocs 126

with that, with the circle, we start out with a prayer and then everything is read aloud
to the committee, what the offence is. And as well we ask the offender, if he really fully
understands the reasoning for the sentencing circle. Some do and some don't. But
during our meeting, when we get together, we explain to the offender what happens in
the circle. See this is their opportunity to turn their lives around instead of getting into
trouble all the time, this is the time to, you know, reflect back on what's happened to
their lives and people are caring and they're trying to help. And we explain this to
every offender that comes to the circle, and then we proceed to give proper recom-
mendations for that offender, and to follow through, and as well make sure they agree
with what we've recommended, if they're willing to do it. And once they agree, then
everything is typed up, the recommendations, and then the judge will look at them.'36

The sentence advisory process is in its infancy in the Saskatchewan com-

munities studied. Despite his warning that it may be premature to draw any
conclusions from the community sentencing initiatives,137 Judge Fafard sug-
gested that belief in the effectiveness of process itself was a deterrent:
[Y]ou could say that in Pelican Narrows, ... because our case load there diminished
fairly dramatically since we've started doing sentencing circles maybe you could con-
clude from that that its having an impact on actual crime. Because it may be, ... if peo-
ple believe that the system of administration of justice that supervises them ... is func-
tioning for them and by them in their own best interests, that they're less likely to go
against it.t38
According to Judge Fafard, the committee at Pelican Narrows tended to. be
more demanding, and stricter in its recommendations respecting probation or-
ders, than he himself would be.19 Conclusions on overall impact of this process

135
Interview with Derek Custer (16 November 1995) Pelican Narrows, Saskatchewan.
116 Ibid.
137 Discussion with Fafard J. (14 November 1994) Pelican Narrows, Saskatchewan.
138
Fafard J., December interview, supra note 59.
139
Interview by telephone with Fafard J. (19 September 1994). The "sentencing circle com-
mittee" at Cumberland House served two functions: sentence advisory and media-
tion/diversion. During a field trip to Cumberland House 12 December 1994, two cases were
considered by the committee in its sentencing advisory capacity. In each case, the com-
mittee met with the offenders and attempted to reach a consensus on a sentence recom-
mendation. One case involved an 18 year old offender charged with assault. Prior to the
offender entering the meeting room, the committee considered the circumstances of the as-
sault provided by the police (a drunken assault on one of her friends at a party) and devel-
oped a tentative recommendation. As the offender had no criminal record, the police had
 102 MANITOBA LAW JOURNAL VOL 25 NO 1

would have been overly hasty. However, the committee initially appeared to
have alleviated time pressures on the court, in contrast to lengthy sentencing
circles, while at the same time facilitating community sentencing input.
Although time saved for the court party may be viewed as a benefit, argua-
bly the most telling lesson to be taken from the development of sentence advi-
sory committees is the significant role that can be played by local community
members without direct supervision by the court. This lay involvement may en-

1997 CanLIIDocs 126

hance feelings of community "ownership" over the process while simultaneously
providing additional resources to the court. In the context of circle sentencing,
the strength of local participation and initiative were evident in the operation of
the Kwanlin Dun Circle process in the Yukon190 and the Blood Tribe Alterna-
tive Sentencing Program (Aissimohkl) in Alberta.141 Both initiatives involve
local community members in planning, organising, and supervising the circle
sentencing process. The logical extension of this level of community involve-
ment is complete diversion of offenders from the court system through commu-
nity mediation committees.

E. The Community Mediation Committee

Although not concerned with the imposition of a criminal sentence, mediation
does provide for the disposition and resolution of criminal actions by adults and
youths diverted from the court system.142 The goals of mediation are varied.
Professor Jackson described the objectives of an aboriginal mediation program
operating in High Level, Alberta in 1981 as including:
(i) short circuiting the law breaking-incarceration cycles of Native offenders;
(ii) giving Native people a better understanding of the criminal justice system;

recommended a suspended sentence with probation. The committee decided on a one year
probation order requiring her to abstain from alcohol consumption, take alcohol counsel-
ling and apologise to the victim. The offender did not agree. She emphasised that her friend
had received only six months probation for a similar offence. A struggle ensued back and
forth as the committee attempted to convince the offender she should agree with the rec-
ommendation while the offender tried to convince the committee to reduce the recom-
mended probationary period to six months. Eventually, the committee members came to
the unanimous conclusion that the offender could either agree with their recommendation
or have the charge referred back to the court without recommendation (in which case the
offender could "take her chances with the judge"). The offender then agreed with the rec-
ommendations and the matter was finalised pending appearance before the judge on the
next court date.
140
This is described in detail by Lilies J. in Gingell supra note 7.
141
This is also described in detail by Jacobson J. in Manyfingers, supra note 84.
142
This process is sanctioned for young persons by s. 4 of the Young Offenders Act and for
adults by ss. 717-717.4 of the Criminal Code. At the time of field work for this study, these
Code sections had yet to be proclaimed. However, the Crown still exercised its discretion in
diverting both adult and young offenders within the mediation initiatives studied.
 Aboriginal Community Sentencing and Mediation 103

(iii) increasing community participation in and "ownership" of the criminal justice sys-
tem and;
(iv) minimising the penetration of Native people into the criminal justice system.143

With these objectives in mind, advocates of criminal mediation have sug-

gested local communities are well equipped to achieve resolution of many dis-
putes previously handled by the court system. In 1975, the Law Reform Com-
mission of Canada discussed the advantages of community participation in me-

1997 CanLIIDocs 126

diation:
The continuing interest in diversion is fed by many sources. There is a growing disap-
pointment with an over-reliance on the criminal law as a means of dealing with a mul-
titude of social problems. At the same time we realise [that] rehabilitation does not
provide a full answer to the problem of crime. Increasingly, it has recognised that crime
has social roots and sentencing policies must take into account not only the offender
but the community and the victim as well....
The general peace of the community may be strengthened more through a recon-
ciliation of the offender and victim [than] through their polarization in an adversary
trial.
Diversion encourages the community to participate in supporting the criminal
justice system to the degree that was not always possible under the trial model. Profes-
sionals, para-professionals, ex-offenders and ordinary citizens are encouraged to join
the delivery of services to the criminal justice system, for the diversion program rests
upon a community base.144

In an aboriginal context, the relationship between the community, victim, and

offender within the mediation process was explained by Donald McKay Jr. of
Cumberland House:
So we bring these two people face to face and ask them why'd you do it, for what rea-
son, and then we get them started talking to each other and say, the accused can say
well how can I pay you back, what can I do for you, you know? Maybe I can work for
you for if it's 100 hours, right now in winter time, shovelling snow or chopping wood,
or any kind of little chores around the house, you know, just as a kind of form of resti-
tution, instead of paying back money all the time? Sometimes people bust a window or
kick a door down or something like that. Well maybe that person can, you know, put
some money in by replacing a window or door and that type of thing, but that's the
biggest thing I have with these community circles. We know the people that's been
victimized and we also know the people charged, and I just think it's a whole _commu-
nity healing process. We know them better than the court systems.145

In addition to promoting offender/victim reconciliation and compensation, local

mediation committees also focused on changing offender behaviour. Cyril Roy,

143 Jackson, supra note 3 at 277.

144
Law Reform Commission of Canada, Studies on Diversion, Working Paper No. 7 (Ottawa:
Queen's Printers,1975) as cited in M. Jackson, "In Search of Pathways to Justice: Alterna-
tive Dispute Resolution in Aboriginal Communities" (1992) U.B.C. L. Rev. 147 at 178.
145
McKay interview, supra note 27.
 104 MANITOBA LAW JOURNAL VOL 25 NO 1

Chairperson of the Cumberland House Sentencing Circle Committee, believes

interaction between his committee and offenders promotes such a change.'46
Mediation is the only model of community participation considered in this
article which allows local community members the final decision on disposi-
tion.147 Despite this ultimate decision-making power, the breadth of mediation
had been limited by the range of offenses referred to the local community by the
police and courts.` Constable Murray Bartley, stationed in Cumberland House,

1997 CanLIIDocs 126

suggested that mediation should only be made available for minor property of-
fenses and not for more serious crimes of violence, which he doubted the com-
mittee would be able to handle.149 However, Donald McKay Jr. felt that his
committee could deal with more serious referrals:
I guess I questioned the judge a couple of times on what kind of cases we could deal
with, I guess the far more serious cases, say assault and stuff like that, are too serious
for us, according to the judge or court system, to deal with. But we've been dealing
with say breaking and enter, mischief, damage of property and cases like that. Assault
charges maybe between two young people, stuff like that we've been dealing with. But
far more serious assault charges where a weapon was used, those ones we haven't been
able to deal with ... . [However], I keep saying this. I've probably said it ten times, but
we are the ones that live here in this community. We are the ones that have to live
with these people that commit crimes. And I think we as a community should be
dealing with them.15°
Further experience with this process appears likely to increase the confidence of
local community members in dealing with more difficult and challenging cases.
According to Fafard J., speaking in the context of the development of sentenc-

146
Roy interview, supra note 29. Similarly, RCMP Constable Murray Bartley of Cumberland
House, when interviewed 14 December 1994, commented on the deterrent effects of the
mediation process on offenders (although he questioned whether victim restitution was al-
ways possible):

[M]any of these offenses are so minor, there's really no victim. And to order
[monetary] restitution is impossible and I think it's a lot more difficult to face a
group of people in your community such as elders, ... and, if there is a victim, peo-
ple you've actually victimized, and to have to actually personally apologize to
them, [it is harder] than to just receive a fine and walk away in a courtroom.
147
Interview by telephone with Judge Brian Huculak (7 December 1994). Judge Huculak
stressed the empowering impact on communities of this fmal decision-making power.
148
During the course of field work for this study (September 1994—August 1995) diversion
referrals were solely in the discretion of the local police, Crown prosecutor, or judge. Effec-
tive 3 September 1996, the Criminal Code was amended to recognise adult alternative
measures programs. Provinces were delegated the responsibility of defining the criteria for
such programs, including the classification of offenders and offences which could be di-
verted.
149
Bartley interview, supra note 63.
150 McKay interview, supra note 27.
 Aboriginal Community Sentencing and Mediation 105

ing circles, "It seems that if people have things done for them and long enough,
they lose confidence in their own abilities.i151

III. THE EVOLUTION OF COMMUNITY SENTENCING AND

MEDIATION

A. Development and Impact

1997 CanLIIDocs 126

Data from the communities specifically studied yielded four community partici-
pation approaches: circle sentencing,152 the sentence advisory committee,153 the
elders' or community sentencing panel,154 and the community mediation corn-

151 Fafard J., "Sentencing Circle: A Progress Report" (La Ronge, Saskatchewan, undated) [un-
published]. Recognition of community decision-making experience and confidence was re-
flected in his comments, during a telephone interview 16 December 1994, regarding com-
munity perceptions of punishment:

I think that to a large extent people haven't made up their minds about this, well,
because they've never been called upon to think about it. We've done all the
thinking and dictating, and now we're asking people to make decisions, we're pre-
senting them the opportunity to think about it and the motivation to give it some
thought. They're motivated to think about it because they have some responsibil-
ity to decide, you know, so now people really have to seriously address their minds
to it.

During a telephone interview with Judge Huculak on 7 December 1994, she indicated that,
during her attempts to establish the mediation/diversion program in Pelican Narrows, she
sensed the local community lacked the confidence to proceed on their own and wanted to
start the mediation process with her direct input.
152
This was practiced at the Provincial Court sitting in Sandy Bay, Pelican Narrows and Cum-
berland House, Saskatchewan, and in Hollow Water and Pukatawagan, Manitoba.
153 This was functioning through the "Sentencing Circle Committee" at Sandy Bay, Pelican
Narrows, Cumberland House, and the "Justice Committee" at Pukatawagan.
154 It was referred to as the Elders' Justice Advisory Council at Waywayseecappo First Nation
and as the Justice Committee at Mathias Colomb Cree Nation (Pukatawagan).
106 MANITOBA LAW JOURNAL VOL 25 NO 1

mittee.155 Case selection in all models was controlled by judges, with the excep-
tion of mediation at Cumberland House and Pukatawagan.'56
A wide variety of offenses were disposed of through the community sen-
tencing and mediation approaches studied. In northern Saskatchewan, the cri-
terion requiring that a case be one "which the court would be willing to take a
calculated risk and depart from the usual range of sentencing" appears to have
had the effect of restricting circle sentencing to offenses and offenders for which

1997 CanLIIDocs 126

a period of incarceration considerably less than two years would have been the
norm. Other than Taylor,157 no Saskatchewan circle sentencing case has in-
volved a sexual assault, an offence which usually results in a penitentiary term
according to appellate sentencing guidelines. The sentencing circles conducted
at Hollow Water were, by contrast, sexual assault cases. Although the local dy-
namics at Hollow Water were complex, the protocol negotiated with the De-
partment of Justice appears to have been a major factor in allowing community
sentencing for an offence which previously resulted in an automatic peniten-
tiary term. An unanswered question was whether certain offenses, especially
those involving domestic violence, were suitable for circle sentencing. Feminist
scholarship has argued that the historical power imbalances existing in abusive
relationships makes violent men poor candidates for mediation.158 Yet cases of
spousal assault have been considered within sentencing circles in northern Sas-
katchewan. The consideration of such cases by circle sentencing, other com-
munity sentencing, or mediation approaches, will require great caution in en-
suring the victim has significant support and that she has not been coerced into
participating.
The sentencing and mediation approaches studied evinced varied recogni-
tion of aboriginal traditions and practices. A prayer was offered in Cree by an

155
This was functioning through the Sentencing Circle Committee at Cumberland House and
the Justice Committee at Pukatawagan. Although not yet functioning in the spring of 1995,
a mediation committee similar to that operating in Cumberland House was being formed in
Pelican Narrows and Sandy Bay. Mediation for young offenders and adults was already be-
ing conducted in these communities on an informal basis by representatives of the Depart-
ments of Justice and Social Services. When considering mediation/diversion, it should be
recognised that police often find themselves in the role of mediator. Corporal Kirke Hop-
kins of Pelican advised, when interviewed 18 April 1995, that the significant discretion
available to police officers in laying charges often places them in a position of working out a
solution between aggrieved parties without laying a charge.
156
In these communities, the police primarily control case referral, although some cases had
been referred to mediation by the court at Cumberland House and by local community
members at Pukatawagan.
157 Supra note 87.
Ise
See H. Astor, "Swimming Against the Tide: Keeping Violent Men Out of Mediation" in J.
Stubbs, ed., Women, Male Violence and the Law (Sydney: Institute of Criminology, 1994)
147.
 Aboriginal Community Sentencing and Mediation 107

elder at both Pukatawagan court 11 April 1995 and a sentencing circle con-
ducted 14 November 1994 at Pelican Narrows.159 An Ojibway prayer was of-
fered at Waywayseecappo court 2 March 1995, as well as at the Winnipeg cir-
cle. No prayer or traditional ceremony preceded the Cumberland House Sen-
tencing Circle Committee meeting 13 December 1994. Sweetgrass and pipe
ceremonies have been used during court at Hollow Water and Pukatawagan
and were used during the Winnipeg circle. Offenders and other circle partici-

1997 CanLIIDocs 126

pants were allowed to speak their Native language in all court and mediation
hearings observed. The "aboriginal practices" incorporated into community
sentencing and mediation included both spirituality (signified by prayers, sweet-
grass burning, or pipe ceremonies) and process (such as grassroots consultation,
community consensus, and sharing). The circle itself has been viewed by abo-
riginal people as having traditional significance.t60 Whether or not such a spe-
cific historical link exists for the First Nations in this study, the circle format
employed in court and mediation represents a more egalitarian process of adju-
dication,161 reflecting the communal traditions and aspirations of aboriginal so-
ciety.
Although the aboriginal practices described form an integral part of the
sentencing process, their inclusion appears to be as an adaptation to conven-
tional court protocol rather than an adoption of traditional aboriginal dispute
resolution practices. Anglo-Canadian adjudication practices are retained; the
judge controls the final sentencing decision and the voices of defense and
Crown counsel are predominant in an otherwise consultative process. Despite
the continued prominence of judges and lawyers, these community sentencing
approaches demonstrate the flexibility of Anglo-Canadian law, in allowing both
local participation and recognition of traditional aboriginal practices during
sentencing.
Since the initiatives studied are in their infancy, conclusions regarding their
impact on offenders, victims, and communities are tentative and largely anec-
dotal. For example, lawyer Joyce Dalmyn described the positive impact of a
sentencing circle on a young man at Pukatawagan:
There are some [offenders], for example, the young man I mentioned earlier who
should have been in a penitentiary and [would have] gotten no benefit there, who, for
some reason has done extremely well for two years. And I can't explain that. Did the
input of the community help him? It must have. He spent three and a half out of the

159 Hereafter called the "Pelican Narrows circle."

160 This point was made strongly by two sentencing circle participants: Berma Bushie, an
Ojibway woman from Hollow Water (interviewed 6 February 1995) and Verna Merasty, a
Cree woman from Sandy Bay (interviewed 20 October 1994).
161
Compare this egalitarian process to the hierarchical approach followed in conventional
court which focuses almost exclusively on the participation of crown and defense counsel
and the judge.
108 MANITOBA LAW JOURNAL VOL 25 No 1

four preceding years in jail. Something good came [from the sentencing circle] for him.
Is he an anomaly, or is he a norm?'6z
During a sentencing circle conducted 19 April 1995 at Sandy Bay,163 Judge Fa-
fard stated that, although two offenders sentenced before local sentencing cir-
cles had re-offended, the result of such circles had generally been positive. He
believed offenders paid more attention to recommendations from the commu-
nity than from a judge alone. "Before sentencing circles, I would leave your

1997 CanLIIDocs 126

community at the end of the day without solving any of the underlying prob-
lems," he told the circle.
No data was available on recidivism rates for offenders dealt with through
community sentencing or mediation in the communities studied. At Pukatawa-
gan, Corporal Bob Brossart believes there has been scant difference in recidi-
vism between offenders sentenced in conventional court and those dealt with
by the justice committee.164 Although prominent cases of recidivism may have
had the effect of fuelling opposition to community sentencing,165 the usefulness
of this recidivism as a measure in assessing the effectiveness of these reforms
remains open to question, given the track record of the prevailing justice system
in aboriginal communities. As Judge Stuart of the Yukon Territorial Court
noted, "Whatever failures the [Sentencing] Circle may experience, it is impor-
tant to note how the justice system ha[s] failed numerous times with the same
offender."166
The impact of these initiatives upon offenders was gauged through inter-
views with initiative participants and through observations of offenders in court
or during mediation. Although two former offenders were interviewed in Sandy
Bay, no offenders were interviewed at the time of sentencing because most were
preoccupied with their immediate case.167 Several community sentencing par-
ticipants who were interviewed believed they were better equipped to control
offender behaviour than judges, lawyers, and probation officers. They viewed
peer pressure during community sentencing and mediation as a significant fac-

162
Dalmyn interview, supra note 40.
163 Hereinafter called the "Sandy Bay circle."
164
Interview with Corporal Bob Brossart (11 April 1995) Pukatawagan, Manitoba.
165 W. Goulding, "Sentencing Circle used Previously by Suspect" The Saskatoon Star Phoenix (6
June 1995) A6 which focused on the previous circle sentencing experience of person ar-
rested on a charge of break and enter.
166
Stuart, supra note 41 at 5.
167
During a field trip to Sandy Bay 18-20 October 1994, Dean Stuart, one of the first offend-
ers sentenced before a local sentencing circle, was spoken to while walking down the main
street. Plans were formed to interview him during a future visit. However, upon return to
Sandy Bay in April 1995, Dean was in jail having been arrested for breaching .a no-alcohol
provision in his probation order. During this latter trip, Conrad Bear, the offender sen-
tenced in the Sandy Bay circle, was also contacted. He declined to be interviewed.
 Aboriginal Community Sentencing and Mediation 109

tor in promoting changed offender behaviour. The immediate effect of peer

pressure upon offenders was evident at the Sandy Bay and Pelican Narrows cir-
cles and during court at Waywayseecappo and Pukatawagan. Offenders sen-
tenced on these occasions appeared humbled by the experience of coming be-
fore other community members. Circle sentencing committee member Donald
McKay Jr. of Cumberland House described the impact of his committee on of-
fenders:

1997 CanLIIDocs 126

If the community people begin to deal with the community problems, you know, and
people being accused of these crimes will come in, they are pretty nervous to face the
community, but this person has to live in this community. Whether they get probation
or jail, they're going to come back and live here. So I just think if they deal with the
community and realize people around the sentencing circle are trying to help them out,
I think more and more people will ask for the sentencing circle.'

By involving community members in sentence design and supervision, judges

made additional resources accessible in order to encourage behavioural reform
and simultaneously facilitate reconciliation among offenders, victims, and the
local community.169
The impact of these initiatives upon crime victims was difficult to assess.
Out of respect for their situations, no victims were interviewed. Some under-
standing was gained through comments of participants and observations of vic-
tims during circle sentencing and the Hollow Water community review. CHCH
at Hollow Water was the only initiative studied that showed evidence of a for-
mal support system for victims. Although a clear emphasis on promoting recon-
ciliation between offenders and victims was claimed by various participants
within the other community sentencing and mediation initiatives studied, the

168
McKay interview, supra note 27.
169
See Joseyounen supra note 73 at 445 where Fafard J. commented:

The aim of sentencing circles is the same when the disposition is arrived at by
other means: the protection of society by curtailing the commission of the crime
by this offender and others.
However, in sentencing circles the emphasis is less on deterrence and more
on re-integration into society, rehabilitation, and a restoration of harmony within
the community.

Community members in Sandy Bay had formed, in conjunction with Judge Fafard, the
Sandy Bay Youth Sentencing Advisory Committee in the late 1980's. This committee de-
veloped sentencing recommendations on specific cases referred from the court. One former
young offender, who appeared before this committee, was interviewed during a field trip to
Sandy Bay in April 1995. He described the positive impact he had experienced, through this
process. When the committee challenged him to explain the reason for committing his
crime (a break and enter), he felt able to tell the committee about his troubled home life.
He said the committee had helped him by exploring the problems underlying his behaviour
and by providing him with ongoing support and counselling. He had not re-offended since
the initial offence.
110 MANITOBA LAW JOURNAL VOL 25 NO 1

involvement of victims and provision for victim support in these communities

appeared disorganised and inconsistent. Although victims were usually present
at the formal and informal sentencing circles conducted at Pukatawagan, lawyer
Joyce Dalmyn and Corporal Robert Brossart questioned the lack of victim in-
volvement in mediation conducted by the local justice committee.10 In north-
ern Saskatchewan, victim involvement in circle sentencing and mediation was
inconsistent. Although the victim had been active in arranging and participat-

1997 CanLIIDocs 126

ing at the Sandy Bay circle, the victim was not present at the Pelican Narrows
circle; no one spoke on his behalf."' At the Sentencing Circle Committee
meeting 13 December 1994 at Cumberland House, no victims appeared before
the committee, although some appeared to have been previously consulted by
committee members. With the exception of CHCH at Hollow Water, victims
appeared to participate less and have less support offered to them than did of-
fenders.
A major impact of these initiatives is the empowerment of community par-
ticipants. Some view development of community sentencing and mediation as
essential to their community's development and health. At Cumberland House,
Sentencing Circle Committee Chairperson Cyril Roy stated that expansion of
his committee's role in local dispute resolution was the "only way we can keep
our community a little stronger and keep it going.""Z Lawyer Felicia Daunt ob-
served that the impact of circle sentencing at Sandy Bay had been both positive
and empowering:
Well, in Sandy Bay, in particular, I've noticed that sentencing circles have really had a
very positive impact on the community. In Sandy Bay we used to see a lot more violent
offenses and higher levels of violence than you do now. In general, I get the impression
that the community has started to heal itself and I think sentencing circles were a step
in that. It sort of got the people in the community together talking about problems
that, although they're sentencing one person, the community shares.''

Despite these positive views, others at Sandy Bay are sceptical of the impact
of circle sentencing. A Sandy Bay man commented, over breakfast, that he had
been to jail "before there were sentencing circles." He viewed circle sentencing
negatively, believing it allowed offenders to be sentenced without any penalty
and "if you break the law, there has to be a penalty." Indeed, a perception ap-
peared to be developing among Sandy Bay offenders by Spring 1995 that sen-

10 Dalmyn interview, supra note 40 and Brossart interview, supra note 164.
" This victim had been recently sentenced to custody and was also experiencing further
medical problems resulting from the assault being considered in the sentencing circle.
172 Roy interview, supra note 29.
" Interview with Felicia Daunt (19 April 1995) Sandy Bay, Saskatchewan. When interviewed
16 December 1995, Fafard J. indicated there had been a fairly dramatic decrease in the
court's case load since the beginning of circle sentencing there. He stated, "[m]aybe you
could conclude from that that it's having an impact on actual crime."
 Aboriginal Community Sentencing and Mediation 111

tencing circles were an "easy way out." Sentencing circle participant Harry
Morin viewed this development as resulting largely from the lack of treatment
options available for offenders in northern Saskatchewan. This shortage often
means that a suspended sentence with few probation conditions is the only
available alternative to jail for some offenders, leaving the impression that little,
if any, penalty had been imposed.
Criticism of the circle process was also heard at the Winnipeg circle when

1997 CanLIIDocs 126

an Ojibway man, the brother of both victims, openly challenged this approach
and suggested that the victims and offender (his father) would have been better
off participating in a session with a trained psychologist.
Given such varied reactions and the short history of these initiatives, their
long term implications and impact remain difficult to assess. However, in the
short term, such approaches clearly have an empowering impact upon the
community members involved in their development.

B. Justice Issues Raised by Community Sentencing

This study identified several key issues whose resolution, both at the local
community level and across the Canadian justice system as a whole, will affect
the evolution of community sentencing and mediation in aboriginal communi-
ties. These recurring themes raise the inter-relationship, and at times tension,
between local systems of social control and the prevailing justice system.

1. The Court's Supervisory Role in Community Sentencing Approache's

The development of sentence advisory committees at Sandy Bay, Pelican Nar-
rows, and Cumberland House indicates a move away from circle sentencing
with a judge in attendance toward the development of community sentencing
recommendations reached in the absence of the court party. This reduces the
amount of court time required for such cases. However, it also raises the issue of
the court's role in such a progression: is its role simply to receive sentencing
recommendations from a community committee, or should it actively facilitate
sentencing circle recommendations? Judge Stuart of the Yukon Territorial
Court14 expressed concern about the absence of judges within the sentencing
circle process. He viewed a judge's presence as the preferred means of identify-
ing and controlling power imbalances between circle participants, although he
recognised that such a role could be performed by a community member. While
supporting the sentence advisory committee approach, Judge Fafard recognised
the need for periodic judicial involvement in such circles to ensure consistency
and supervise potential misuse of the process:
I guess I want to ensure some consistency you know, because you have several accused
charged with the same or similar offenses, I want to make sure that the dispositions are

174 Interview by telephone with Judge Stuart (18 September 1994). Circle sentencing has been
used regularly in the Yukon since 1992. See Nemeth, supra note 46.
112 MANITOBA LAW JOURNAL VOL 25 No 1

fairly consistent, but I guess the greater thing is that it affects so many different people
in that one community, that I'm almost afraid of some political influence. Because it
touches on so many people, and I just sort of felt that maybe I should be there to en-
sure that politics doesn't get involved, that you don't have a powerful family dictating
to a weaker family, that kind of thing.175

Despite this judicial caution over circle power imbalances, trained and expe-
rienced community members could eventually perform the facilitation function

1997 CanLIIDocs 126

currently performed by judges during circle sentencing. Indeed, at the Sen-
tencing Circle Committee meeting attended 13 December 1995 at Cumberland
House,16 committee chairperson Cyril Roy performed a facilitation role similar
to that performed by Judge Fafard at the Pelican Narrows and Sandy Bay cir-
cles."' Although judges provide protection from power imbalances during
court, the court party regularly departs from these communities upon the con-
clusion of the court session, leaving community circle participants to deal di-
rectly with offenders in the court's absence. As a result, development of media-
tion and facilitation skills would strengthen local/informal systems of social
control that attempt to change offender behaviour and promote rehabilitation.

2. Political Influence and Judicial Independence

Community sentencing and mediation involve interaction between local sys-
tems of social control and the formal justice system. In these evolving commu-
nity sentencing and mediation initiatives, the Anglo-Canadian court system,
based on the principle of judicial independence from political interference and
coercion, interacts with the opinions, informal relationships, and power struc-
tures of local communities. This raises the potential influence of local politics
and the popularity and status of specific offenders on decisions taken during
community sentencing. Judge Fafard expressed concern for the integrity and
independence of circle sentencing; he was adamant that power imbalances re-

Fafard J. December interview, supra note 59.

176 This meeting involved cases referred to the committee both for mediation/diversion and for
a sentencing recommendation to the court.
177
See Stuart, supra note 41 at 14 where Judge Stuart described the use of community mem-
bers as circle sentencing facilitators in the Yukon:

In some communities, the presiding Judge or Justice of the Peace act as facilitators.
Other communities have persons as "Keepers of the Circle" who act both as host
and facilitator of the Circle process. If a "Keeper of the Circle" is not a Justice of
the Peace, the "Keeper" will call upon the Judge or Justice of the Peace to handle
all legal matters required throughout the Hearing.

At a community review circle conducted 22 February 1995 at Hollow Water (during which
the progress of five offenders and victims previously dealt with through sentencing circles
was evaluated), community member Marcel Hardesty acted as a facilitator for the victim,
offenders, and community members in attendance.
 Aboriginal Community Sentencing and Mediation 113

suiting from political influence be avoided, thereby preventing actual or per-

ceived bias. In Joseyounen he wrote:
In the Euro-Canadian model where the judge imposes sentence without the aid of a
sentencing circle, the judge speaks for the people and attempts to deliver a fair, impar-
tial and just disposition. This he does without fear of political interference while at the
same time he attempts to reflect the legitimate concerns and aspirations of the com-
munity ....
In exploring the flexibility of the criminal law of Canada and its ability to accom-

1997 CanLIIDocs 126

modate First Nations cultures and legitimate needs, let us not re-invent those things
which are so important to an impartial system of justice. If we throw out the essence of
impartiality we run the risk of doing grave injustice to both offender and victim. What
I mean is the input of community elders and leaders must not mean the exercise of po-
litical influence in the circle to the detriment of the accused or a victim.
The principle of judicial independence in decision-making is one that is deeply in-
grained in the Canadian population, including the First Nations. The many sentencing
circles I have held have included the participation of chiefs, band councillors, mayors,
and others in political office. I have never seen any of these persons attempt to influ-
ence the outcome by virtue of their political office.178

No direct attempt at political influence through community sentencing rep-

resentations was observed during this study, although the potential for such in-
terference necessitates caution. Closely related to—and at times indistinguish-
able from—questions of local political interference are the effect of offender
popularity and status on the sentencing process. These appeared to be signifi-
cant factors in the developing initiatives, especially at Pukatawagan. Lawyer
Joyce Dalmyn explained that judges sitting at this First Nation had been influ-
enced significantly by a lack of community support for an offender:
Sometimes people have nothing to say, which can be very unfortunate. And that's
something as defense counsel I have to alert my client to, is if they want to have a cir-
cle, they had better make sure that they're going to have someone there to speak for
them. Because if the feather gets passed around and no-one makes any comment what-
soever, I have heard a judge state, right on the record, "Well it's clear that because
nothing has been said, obviously they're not willing to say anything good about this
person therefore I can only draw the conclusion that there's no sympathy for this per-
son and I have to use the harshest penalties available to me." 179

178
Supra note 73 at 443. Associate Chief Judge Brian Giesbrecht of the Manitoba Provincial
Court found numerous examples of political interference by chiefs and counsellors in the
operation of Dakota Ojibway Child and Family Services. See Giesbrecht J., The Fatal In-
quiries Act: Report by Provincial Court Judge into the Death of Lester Norman Desjarlais (Bran-
don, Manitoba, 1992) at 210. While recognising the dangers of local political interference,
judges are not free of personal biases. See W. Gaylin, Partial Justice: A Study of Bias in Sen-
tencing (New York: Alfred Knopf, 1974) in Chapter 3 where the author explored the in-
evitable personal biases held by individual judges which, in turn, affected their decisions on
sentence.
179
Dalmyn interview, supra note 40.
114 MANITOBA LAW JOURNAL VOL 25 No 1

This raised the possibility of community bias against unpopular or marginalised

offenders. This occurred in R. v. Howard180 where the British Columbia Court of
Appeal reduced a sentence that had been unfairly aggravated by community
animosity. The sentencing hearing had turned into an extended post hoc attack
upon the accused when the sentencing judge permitted anyone who wished to
comment on the accused's character or the impact of the [victim's] death on
the native community to be heard.181

1997 CanLIIDocs 126

The Anglo-Canadian court system has evolved as a buffer between offend-
ers and the harshness of public and victim reaction to their crimes. Indeed, one
of the tenets of the formal court system is avoidance of personal reprisal by vic-
tims, or their agents, against perpetrators.182 A concern with these community
sentencing and mediation approaches is that local involvement should not be-
come a forum for the application of political pressure to the advantage of local
elite and to the detriment of politically unpopular or marginalised offenders or
victims.183 In the future, when judges seek community sentencing advice with-
out the consent of offenders or victims, judicial vigilance will be required to en-
sure community comments and recommendations are not motivated by political
considerations.' Despite this potential danger of community input, personal

180 (1991), 15 W.C.B. (2d) 28 (B.C.C.A.).

181
Contained in the case summary.
182
See T. Marshall, Alternatives to Criminal Courts: The Potential for Non Judicial Dispute Set-
tlement (Aldershot: Gower, 1985) at 10: "[t]he historical antecedents of our criminal adju-
dication system suggest that its main purpose is to preserve peace and public order by sub-
stituting state sanction for private vengeance."
183 See Giesbrecht, supra note 178 at 213 where Judge Giesbrecht described the following ex-
amples of political influence within two Manitoba reserve communities:

(i) Constable Ralph Roulette of the Ontario Provincial Police Force described an
incident that occurred at the Birdtail Sioux Reserve when he was a constable with
DOTC Police. Mr. Roulette had evidence that the chief's son was guilty of the
offence of impaired driving. The chief ordered Mr. Roulette not to charge his son.

(ii) Constable Edward Riglin of the Brandon City Police described incidents of po-
litical interference that took place when he was a constable with DOTC Police
from 1986 to 1990. Constable Riglin was personally threatened with a band coun-
cil resolution (BCR) banning him from the reserve on a number of occasions be-
cause he insisted on charging influential reserve residents with criminal offenses.

Also see A. McGillivray, "Therapies of Freedom: The Colonization of Aboriginal Child-

hood" (Faculty of Law, University of Manitoba, January, 1995) [unpublished] at 16-17 for
examples of political interference with the operation of on-reserve child welfare agencies.
184
In the Saskatchewan communities studied, an indication of community support for the
offender was one of the conditions precedent to the formation of a sentencing circle mak-
ing negative bias unlikely. Indeed, as a significant number of circle participants were sup-
porters of the offender, any bias was likely in favour of rather than against the offender.
 Aboriginal Community Sentencing and Mediation 115

relationships between circle participants and the offender, although in effect

representing a lack of objectivity and a partiality towards offender support and
rehabilitation, provide the court with a better understanding of the problems
causing or contributing to the offender's behaviour. These relationships also
increase the resources available to a court in attempting to control and change
such behaviour.

3. Financial Infrastructure or Volunteer Support?

1997 CanLIIDocs 126

To what degree should such initiatives be supported by government funding as
opposed to the voluntary efforts of citizens? Lawyer Sid Robinson of La Ronge
viewed a financial infrastructure as essential to the evolution of circle sentenc-
ing in northern Saskatchewan. Financial compensation for justice committee
members who sat with the court was raised as a significant issue at Pukatawa-
gan. Judge Fafard, however, viewed payment as an interference with the inde-
pendence of the court and preferred circle sentencing in northern Saskatche-
wan to continue developing through the dedication of community volunteers.
Although community and volunteer support was essential to the continued
success of all initiatives, financial resources to train and pay support staff and
establish treatment facilities contributed significantly to the development of
several of the community initiatives studied. At Pelican Narrows, participation
by most members of the sentencing circle committee was facilitated through
their employment with the Peter Balantyne Band. The committee's chairperson
Derek Custer managed this committee as part of his assigned employment du-
ties. At Waywayseecappo, additional government funding supported the
movement of court from Rossburn to the reserve, the employment of an abo-
riginal person as a resident probation officer, and payment of a per diem allow-
ance for the elders sitting in court. At Hollow Water, most members of the
CHCH assessment team were social workers employed by various levels of gov-
ernment. A shortage of treatment facilities in northern Saskatchewan, as well as
a lack of money to build them, appears to be slowing the development of circle
sentencing since 1995. According to Sandy Bay resident and sentencing circle
participant Harry Morin, a shortage of accessible treatment resources limited
the sentencing options available for repeat offenders.185 The expansion of sup-
port and treatment resources appears essential to the evolution of all commu-
nity sentencing and mediation initiatives.

This left open the potential for inter-family politics. Before the Sandy Bay circle, the of-
fender's family met outside the court apparently concerned about the number of non-family
community members and outsiders in attendance. At the start of the circle family members
questioned whether non-family should be allowed to participate, suggesting an attempt by
this family to control the sentencing process. As the circle was open to the public, Judge
Fafard refused to disqualify anyone from the circle.
185
Interview with Harry Morin (18 April 1995) Sandy Bay, Saskatchewan.
116 MANITOBA LAW JOURNAL VOL 25 No 1

4. Expansion of Community Sentencing Approaches

Another issue identified through this study was the breadth of application and
potential for expansion of community sentencing and mediation approaches. In
the context of community sentencing development, should local representatives
be involved in all sentencings at court, as in the Elders' Council at Waywaysee-
cappo, or only in specific cases, as in all other communities studied? Realisti-
cally, even assuming the appropriateness of circle sentencing for all offenders,

1997 CanLIIDocs 126

current court resources in the northern Saskatchewan and Manitoba commu-
nities studied were insufficient to allow circle sentencing for every offender
facing sentencing, given the time requirements of circle sentencing.186 A signifi-
cant increase in court funding (which appears unlikely) or a move towards the
sentence advisory committee model or the elders' sentencing panel model seem
to be the options available for making community sentencing available to more
offenders.187 A further option was broader-based diversion to local mediation
committees.
A related question was whether community sentencing approaches could be
used in larger, less isolated and ethnically diverse communities. All of the ini-
tiatives studied are located in small, relatively isolated aboriginal communities.
In Morin,'s8 the court directed a sentencing circle for a Metis man from Saska-
toon after representations of support were made by the local Metis community.
Although no definition of "community" has been judicially rendered so as to
restrict the application of circle sentencing or other community participation
approaches,169 one strength of the sentencing initiatives studied is the ability of
local community members to influence offender behaviour both during and af-
ter sentencing. Corporal Bob MacMillan of Pelican Narrows suggested local so-

188 Sentencing circles considered during this study involved a minimum of two and a maxi-
mum of fourteen hours.
167 Despite the attention attracted by circle sentencing development in northern Saskatche-
wan, these circles represented a very small percentage of the sentencings occurring. During
the Sandy Bay court sitting on 19 April 1995, one sentencing circle was conducted and ap-
proximately thirty other offenders were sentenced in the conventional fashion.
188
Supra note 48.
189
In Cheekinew, supra note 100 at 147, Grotsky J. commented:

[T]he nature of an offender's community, and its willingness to participate in the

sentencing process, are factors which, in my respectful view, will in each particular
case, depending always on the offender's suitability as a candidate therefor, be
relevant to the determination of whether a sentencing circle ought to be estab-
lished.

In Morin, supra note 43, Bayda C.J.S. commented in dissent that one condition precedent
to circle sentencing was a community "reasonably well defined by reason of the racial origin
of its members, their religion or their culture or by geography or some other feature which
distinguishes the community from other communities ...."
 Aboriginal Community Sentencing and Mediation 117

cial control is more easily identified and accessed in smaller and more isolated
communities than in the larger urban centres:
You can't have a ... sentencing circle in Saskatoon that would work. I can't see how it
would work, because who are the community that's going to be dealing with the of-
fender? You're going to go to Saskatoon and you're going to find a few Elders some-
where that will come to a sentencing circle, impose whatever they feel is right for the
accused, but then there's no follow-up. Who have these people got to go to? The rest
of the community doesn't even know about it. Nor do they care.190

1997 CanLIIDocs 126

Although community based sentencing and mediation has not been precluded
in larger mixed centres, the social control which can be brought to bear on of-
fenders in small communities is a strength.
Whether these community sentencing and mediation approaches will be
applied to non-aboriginal communities and offenders remains unclear. These
approaches have evolved within aboriginal communities, largely in reaction to
problems experienced with the prevailing justice system. They utilise the
strengths of local resources and systems of social control in the sentencing proc-
ess. Although these approaches appeared well suited to the communal tradition
of aboriginal society, nothing within Anglo-Canadian law prevents non-
aboriginal offenders from seeking local sentencing input. There is no reason to
believe the same degree of concern and social control could not be found and
applied among identifiable communities in non-aboriginal society. Indeed, two
recent sentencing circle cases from Saskatchewan involved non-aboriginal of-
fenders.19'

5. The Potential Effect of Statutory Reform and Appellate Sentencing Review

The power of judges to involve community participants in the sentencing proc-
ess is based on the broad discretion given to judges within Anglo-Canadian law.
No specific reference to community sentencing participation, by sentencing cir-
cle or other means, appears in the Criminal Code, although s. 723(3) provides
that "Lt]he court may ... require production of evidence that would assist it in

190
Interview with Corporal Bob MacMillan (16 November 1994) Pelican Narrows, Sas-
katchewan.
191
In R. v. Bogdan (11 September 1996) Katepwa (Sask. Prov. Ct.) [unreported] a non-
aboriginal offender, charged with stealing a snowmobile, participated in a sentencing circle
involving "the judge, lawyers, police and about a handful of Katepwa residents." See T.
Sutter, "Circle Deals with Non-native Offender" The Regina Leader-Post (12 September
1996) A6. In R. v. Williamson (3 June 1997) Loon Lake (Sask. Prov. Ct.) [unreported] a lo-
cal farmer, charged with dangerous driving causing death, received a suspended sentenced
following a sentencing circle. See T. Coulombe, "Suspended Sentence in Accidental
Death" The Meadow Lake Progress (8 June 1997).
 118 MANITOBA LAW JOURNAL VOL 25 No 1

determining the appropriate sentencei192 and s. 717 of the Code establishes a

framework for "alternative measures" (mediation/diversion).193 Regardless of
these provisions, judges are clearly authorised to involve community members
and victims in the sentencing process, making statutory reform unnecessary to
the continued development of these approaches. One statutory change which
may affect the evolution of these approaches is the conditional sentence of im-
prisonment. Section 742.1 of the Criminal Code now provides that where a

1997 CanLIIDocs 126

court imposes "a sentence of imprisonment of less than two years" and is "satis-
fied that serving the sentence in the community would not endanger the safety
of the community" the offender may be allowed to serve the sentence in the
community, subject to the conditions of a conditional sentence order.19' This
amendment should allow offenders, who previously would have been facing an
almost certain period of incarceration, to remain at home and access local re-
sources identified through community sentencing processes.19S
The Saskatchewan Court of Appeal, in Morin,196 appears to be the only Ca-
nadian appellate court to comment in any depth on the practice of circle sen-
tencing.197 Clearly, a major difference of opinion was evident within that court.
The majority, led by Sherstobitoff J.A., although recognising the legality and
appropriateness of circle sentencing in some circumstances, clearly viewed the
court's over-riding consideration as sentence parity. The focus was on whether
there existed any extraordinary circumstances which would distinguish this case

192 Section 718.2(d) and (e) of the Code also require that sanctions other than imprisonment,
where appropriate or reasonable, be considered with particular attention to the circum-
stances of aboriginal offenders.
193
In ss. 717-717.4.
'" The conditional sentence of imprisonment does not apply to offences which require a
minimum term of imprisonment such as a subsequent conviction for impaired driving. Ef-
fective 2 May 1997, Parliament amended this provision to require that, in addition to being
satisfied that community safety would not be endangered, the court must also be satisfied
that a condition sentence would be "consistent with the fundamental purpose and princi-
ples of sentencing set out in sections 718 to 718.2." This may serve to restrict the number
of conditional sentences granted although discretion still must be applied in determining
which principle of sentencing is paramount in a given case, and hence, whether a condi-
tional sentence would be inconsistent with this criteria.
195
See R. v. McDonald, [1997] S.J. No. 117 (QL) (Sask. C.A.) in which the Saskatchewan
Court of Appeal considered the propriety of a conditional sentence of imprisonment for an
aboriginal women charged with criminal negligence causing death.
196 Supra note 42.
197
Provincial appellate courts in the Yukon (in Johnson, supra note 69 and Johns, supra note
70) and Alberta (in John, supra note 54) have considered sentence appeals from lower court
sentencing circles, but appear to have focused on the fitness of sentence and have not
commented at any length on the appropriateness of circle sentencing or other forms of
community sentencing.
 Aboriginal Community Sentencing and Mediation 119

from the normal appellate range given the offender and the circumstances of
the offence.198 Chief Justice Bayda, in a strong dissent, argued that the principle
of sentence parity must defer, in some cases, to attempts at ameliorating the
over-representation of aboriginal people in jail. He viewed circle sentencing as a
tool in addressing this inequity:
[O]ur present justice system is flexible, accommodating and geared to do what must be
done to achieve fairness and justice for all. That quality enables the system to embrace

1997 CanLIIDocs 126

sentencing circles as part of the system and to ascribe to them a role in addressing the
disparity in the prison population by empowering communities to help individuals
break their personal cycles of misbehaviour ... . In that sense, the perpetuation of en-
trenched attitudes in relation to sentencing in the guise of maintaining sentence parity
is not in the interests of the administration of justice in this province or the well-being
of our society.'

Whether subsequent appellate comment adheres strictly to maintenance of es-

tablished sentencing ranges and tariffs will indubitably affect the development
and scope of circle sentencing.200 Since one aim of the community sentencing
approaches considered in this study is to change offender behaviour through
community reintegration rather than jail, many sentences achieved through
these initiatives fall outside accepted appellate ranges. This has drawn criticism
from those espousing the goal of province-wide sentence uniformity.201 How-
ever, such arguments fail to take account of the availability and effect of local
resources, including informal systems of social control and offender support,
within aboriginal communities. These resources provide a wider range of sen-
tencing options. The philosophy behind these developing initiatives has run
counter to the prevailing assumption that more severe penalties (including
prolonged incarceration) provide greater general and specific deterrence than
community-based sentences. The community of Hollow Water disagreed with
this assumption:
The legal system, based on principles of punishment and deterrence, as we see it, sim-
ply is not working. We can not understand how the legal system doesn't see this.

198 It was undisputed at the appeal that the appellate range for the offence in question (robbery
of a convenience store) was a penitentiary term.
199
Morin, supra note 42 at 72.
200
In an interesting lower court decision following Morin, Lilles J. in C.P., supra note 85 at 2-
5, appeared to criticise what he viewed as the Saskatchewan Court of Appeal's preoccupa-
tion with sentence parity in determining the propriety of a sentencing circle for the of-
fender Morin. Judge Lilles commented that there are many advantages to community con-
sultation through a sentencing circle regardless of whether the sentence imposed is one of
incarceration within the range "expected in ordinary court."
201 See M. Mandryk, "Sentence Method Defended" Regina Leader Post (13 April 1995) A8
where Opposition Justice Critic Don Toth was said to have suggested that sentencing cir-
cles might be creating a two-tiered justice system granting "special treatment under the law
based on race."
120 MANITOBA LAW JOURNAL VOL 25 No 1

Whatever change that occurs when people return to the community from jail seems to
be for the worse. Incarceration may be effective in the larger society, but it is not
working in our community.2022

Crown support of community sentencing in general and of specific sentences

awarded was essential, as a crown appeal could result in the imposition of a
harsher sentence in accordance with any relevant appellate sentencing tariff. Of
the many sentencing circles that Judge Fafard has conducted in northern Sas-

1997 CanLIIDocs 126

katchewan, only one has been appealed by the crown. This infrequency of ap-
peals was largely due to his assurance of crown support before directing specific
cases to a sentencing circle.
A further, and apparently not yet addressed question is whether the Charter
of Rights and Freedoms203 applies to these community sentencing approaches.
Does an offender have a constitutional right to be sentenced before a sentenc-
ing circle or to seek other community participation during sentencing? Can the
Charter be used to resist attempts by judges to consult local community mem-
bers at sentencing? No reported cases have considered these questions; as welt,
they have not been raised by an offender or counsel in any of the communities
studied. As all offenders sentenced through sentencing circles appeared to have
consented to this approach, use of the Charter as a shield against state oppres-
sion during circle sentencing was unlikely. The Charter's application will more
likely be raised where an offender does not consent to some other form of com-
munity involvement in the sentencing process or where community antagonism
or lack of offender support has aggravated sentencing.204 Whether a right to in-
volvement of an offender's local community in sentencing might be an aborigi-
nal right, protected by sections 25 and 35 of the Charter, remains a vital issue,
but one that is outside the scope of this study. This question was not raised in
any sentencing case considered.2os

202
Community Holistic Circle Healing, CHCH Position on Incarceration (Hollow Water,
Manitoba, 1993) [unpublished] at 3-4.
203 Part 1 of the Constitution Act, 1982, being schedule B of the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter Charter].
204
Although no reported cases dealt with application of the Charter to community sentencing,
the effects of community antagonism were seen in Howard, supra note 180, while the nega-
tive interpretation of community silence at sentencing by judges in Pukatawagan was noted
by lawyer Joyce Dalmyn, supra note 40.
205
The Supreme Court of Canada in R. v. Van der Peet, [ 1996] 2 S.C.R. 507 did consider, at
length, the meaning of an "aboriginal right" in the context of a claim that a provincial
fishing regulation was invalid because it violated s. 35(1) of the Charter. This analysis, how-
ever, was limited to the application of a provincial statute as opposed to the federal Crimi-
nal Code. Despite the lack of judicial consideration of the Charter involving community
sentencing, it has been applied in other sentencing cases. See Smith v. R. (1987), 34 C.C.C.
(3d) 97 (S.C.C.) in which the mandatory seven year sentence for importing narcotics under
the Narcotic Control Act was invalidated as it was held to violate of s. 12 of the Charter.
 Aboriginal Community Sentencing and Mediation 121

C. Policy Implications of Expanded Community Sentencing and

Mediation within the Canadian Justice System
The local initiatives studied were based in the formal justice system, but inter-
sected with and related to local systems of social control and dispute resolution.
Judge Murray Sinclair highlighted an important aspect of this inter-relationship
through the distinction he made between "community," "offender," and "judge"
driven sentencing approaches.206 Although judges may be considered by some

1997 CanLIIDocs 126

aboriginal people as agents of "state control," several judges presiding in the
communities studied asserted their judicial independence in response to local
community concerns and their own recognition of problems existing within the
prevailing system. Judge Fafard was clearly conscious of the need for countering
his court's lack of local credibility. He did this partly through his introduction of
circle sentencing into the aboriginal communities of northern Saskatchewan.
The community sentencing and mediation initiatives studied evince a con-
junctive relationship between local aboriginal communities and the Anglo-
Canadian justice system. Several findings of this study illustrate such an inter-
relationship. At Hollow Water, the threat of being charged under the Criminal
Code with breach of probation (or undertaking) served as an inducement for
offenders to actively continue their treatment within CHCH. At Waywaysee-
cappo, offenders were regularly ordered by the judge, or a justice of the peace,
to attend a meeting of the Elders' Council as a term of their release. At Pelican
Narrows, Pukatawagan, and Cumberland House, local committees limited the
number of opportunities for an offender to appear before them before "turning
them back" to the conventional court system.
Despite this conjunctive relationship, many aboriginal people have envis-
aged "breaking" from the prevailing system and establishing an independent
justice and dispute resolution system. On 22 February 1995 at Hollow Water,
CHCH assessment team member Marcel Hardesty expressed the conviction
that eventually his community would break from the prevailing justice system
and operate independently. He said control and reform of offender behaviour
would be achieved through public awareness of specific offenders and offenses
and through education and treatment of offenders, suggesting an evolution of

Also see R. v. Wallace (1987) (Ont. Dist. Ct.) [unreported] where the lack of a local tempo-
rary absence program was found to deny the offender her right to equal protection and
equal benefit under the law as guaranteed in s. 15 of the Charter. As a result, the offender
received a fine rather than imprisonment. See also R. v. Willocks, [1994] 1 C.N.L.R. 167
(Ont. Ct. Just. Prov. Div.) where the Crown's refusal to divert a non-aboriginal offender to
an alternative measures program for aboriginal offenders was found not to constitute a
breach of the offender's rights under s. 15(1) of the Charter. Given the breadth of these
cases, it appears likely that the constitutional implications of community sentencing will
soon be litigated.
206 Supra note 107. This distinction referred to identification of the driving force behind spe-
cific sentencing initiatives.
 122 MANITOBA LAW JOURNAL VOL 25 No 1

dispute resolution and social control dependant on local rather than central
authority. Evolution of the community sentencing and mediation approaches
considered in this study, whether moving towards total local autonomy within a
separate justice system as advocated recently by the Royal Commission on Abo-
riginal Peoples,207 or simply towards increased local participation and control
within the existing system, will depend on resolution of the justice issues raised
in this article. In addressing these issues, the following courses of action will en-

1997 CanLIIDocs 126

hance the development and credibility of community sentencing and mediation.

1. Recognition of approaches by appellate authority

Outside of Saskatchewan, no appellate court has commented, in any depth, on
the community sentencing approaches identified and analysed in this study.
Within Saskatchewan, a significant difference of opinion on the breadth and
applicability of circle sentencing is apparent in the majority and minority deci-
sions in Morin.Z08 Although specific appellate guidelines should not be required,
and perhaps are undesirable, appellate recognition and support of these ap-
proaches across Canada will be crucial to the continued evolution of commu-
nity sentencing.

2. Government support through provisions of personnel and treatment facilities

Although voluntary participation and support of community members is vital to
the development of these initiatives, expansion of government-funded re-
sources, specifically providing trained personnel and treatment facilities, will be
essential. Availability of these resources will increase the community-based
sentencing options open for repeat offenders and will facilitate offender reha-
bilitation through community-based treatment and supervision. Governments
must see a choice between funding these programs or continuing to pay cur-
rently high incarceration costs.

3. A focus on victim participation and support

Despite an apparent concern by local community participants favouring victim
involvement and support within the initiatives studied, a greater emphasis on
voluntary participation by and organised support for victims, both through for-
mal justice channels and through local community involvement, will facilitate
initiative development. Enhanced support and voluntary participation will re-
duce the chances of victim alienation from the system, as well as promoting
healing by victims and reconciliation among victims, offenders, and local com-
munities.

207 Supra note 6 at 76-81.

208 Supra note 42. Mr. Morin applied for leave to appeal his sentence to the Supreme Court of
Canada, but subsequently abandoned this application.
 Aboriginal Community Sentencing and Mediation 123

4. Protocol negotiation between local communities and justice system

representatives
Crown support is essential to the continuation and development of community
sentencing and mediation. Although this support can be expressed in various
forms, one way of ensuring ongoing support and consistency within these initia-
tives will be through negotiation of protocols between local communities and
representatives of the justice system. Protocols will establish the conditions

1997 CanLIIDocs 126

precedent to and the procedures to be followed within such community sen-
tencing approaches.209 Establishment of protocols will also ensure continuity of
approach within each initiative and help to reduce the dependence upon and
the influence of any one individual in initiative development.210

5. Development and expansion of criminal mediation

Mediation was the only model studied which diverted full decision-making
power from the prevailing system to local community members. Although the
Criminal Code now formally recognises alternative measures for adults, expan-
sion of this approach, by diverting more offenders from the court system, will
increase the amount of court time available for consideration of more serious
charges.21 At the same time, communities will be allowed to regain some meas-
ure of control over criminal dispute resolution. For expansion of mediation to
be effective, training in mediation and facilitation skills must be provided to lo-
cal committee members.

IV. CONCLUSION

COMMUNITY SENTENCING AND MEDIATION in Canadian aboriginal communities

is in the initial stages of development. Judge Fafard, the major non-aboriginal
informant for this study, repeatedly urged that it was too early to draw any firm
conclusions about the impact of the community sentencing initiatives. While
respecting this limitation, Rupert Ross's comment is prophetic: "The cries for
local control over community justice are growing."212 The need for sentencing

209
An example is the protocol signed between Hollow Water and the Manitoba Department
of Justice in 1991.
210 One of the reasons the community of Hollow Water sought to negotiate a protocol with
the department of justice was that Crown attorneys responsible for this community fre-
quently changed, thus forcing the CHCH assessment to re-educate each successive attor-
ney.
211
Regardless of statutory recognition, the Crown still controls the range and number of of-
fenders and offences to be diverted.
212
R. Ross, "Cultural Blindness and the Justice System in Remote Native Communities" (Pa-
per presented to the Sharing Common Ground Conference on Aboriginal Policing Services,
Edmonton, May 1990) at 11-12 cited in Jackson, supra note 144 at 208-209.
124 MANITOBA LAW JOURNAL VOL 25 No 1

reform in Canadian aboriginal communities is undeniable, if only because of

highly disproportionate incarceration rates in the conventional system. Hope-
fully, this study provides insight into the functioning and evolution of commu-
nity sentencing and mediation in aboriginal communities and will generate dis-
cussion and debate on the appropriate path for future sentencing reform.
Local feelings of estrangement and separation from the Anglo-Canadian
justice system among aboriginal people have recently come to co-exist with

1997 CanLIIDocs 126

feelings of empowerment among local participants in community sentencing
and mediation. In an apparent contradiction, these participants were prepared
to devote considerable time and energy towards initiatives operating within a
system they had frequently criticised. Their active involvement, however, sug-
gests these initiatives are having a positive impact at the community level. The
breath of discretion existing within the prevailing justice system allows judges
and justice officials to adapt significantly the process and substance of sentenc-
ing in such communities. Although the reforms considered in this study have
not achieved an autonomous justice system for aboriginal people, they highlight
the flexibility available within the conventional system to allow for a recogni-
tion of aboriginal practices and processes and to involve local community mem-
bers in a sentencing process previously dominated by lawyers and judges.
The evolution of community sentencing and mediation may be deeply dis-
tressing to those who believe strongly in province-wide sentencing uniformity.
Many of the sentences resulting from these approaches are outside of estab-
lished appellate sentencing ranges. Although recognising that sentencing uni-
formity is a concept inherent to Anglo-Canadian law, blind adherence to this
principle neglects the current reality in aboriginal communities. As identified
through this study, local resources, including informal systems of social control
previously ignored by the conventional court system, are now being accessed by
judges with a view towards promoting changed offender behaviour and in-
creased public safety. These local systems provide the potential for achieving
the broader Canadian sentencing goals of deterrence, denunciation, and reha-
bilitation. Judge Stuart's analysis of the tension existing between community
sentencing and principles of sentence uniformity is compelling:
To fit the sentence to the circumstances not only of the offence and offender, but also
to the needs of the victim and the community, and do so within available time and re-
sources requires significant information and time. The temptation is to impose stan-
dard sentences must be overcome for the sentencing process to avoid squandering
scarce resources, and to be used to its full potential in achieving its objectives.213
Most would agree that the ultimate goal of any criminal justice system is pro-
tection of the public. Given the undeniable over-incarceration of aboriginal
people, even the possibility of these approaches succeeding, by changing of-

213
D.N., supra note 26 at 29.
 Aboriginal Community Sentencing and Mediation 125

fender behaviour and deterring crime, makes their continued development im-
portant if not crucial.
A significant danger exists if such processes become forums for political in-
terference and the persecution of unpopular or marginalised offenders or vic-
tims. Vigilance by both judges and community participants is required to avoid
this result. If victims are to be directly involved in these approaches, care must
be taken to ensure their support and protection both during and after adjudica-

1997 CanLIIDocs 126

tion. Although the goal of public protection is laudable, this aim is hollow if the
developing processes lead to the alienation and re-victimisation of victims.
The continuing evolution of these community-based approaches depends on
a broad spectrum of support and participation, including local community
members, judges, crown and defense counsel, and probation officers. According
to Associate Chief Judge Giesbrecht of the Provincial Court of Manitoba, the
past two decades have seen other sentencing projects come and go in aboriginal
communities.214 Their demise was usually brought about by the departure of a
key participant. It is essential that the evolving initiatives not come to be con-
trolled by any one individual or lobby group. A major strength of the ap-
proaches studied was the broad-based support they enjoyed both within local
circles and the broader justice system.
Perhaps five years from now many answers will have been provided to the
questions raised in this study. Hopefully, many of these answers will be articu-
lated by aboriginal voices. Other questions will remain unanswered, perhaps
forever. If this study has accomplished anything, it will be to provide insights,
particularly for the non-aboriginal legal community, into the current reality of
sentencing and mediation reform in aboriginal communities and to offer some
guidance towards resolving the issues surrounding their continued develop-
ment.

214 Telephone interview with Associate Chief Judge Giesbrecht (24 February 1995).
1997 CanLIIDocs 126