• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
Page
  1. 1
    1
  2. 2
    2
  3. 3
    3
  4. 4
    4
  5. 5
    5
  6. 6
    6
  7. 7
    7
  8. 8
    8
  9. 9
    9
  10. 10
    10
  11. 11
    11
  12. 12
    12
  13. 13
    13
  14. 14
    14
  15. 15
    15
  16. 16
    16
  17. 17
    17
  18. 18
    18

The Canadian Justice system towards aboriginal offenders

Extracts from this document...

Introduction

Most legal scholars will concede that the failure of the Canadian Justice system towards aboriginal offenders is one of the nation's most profound disgraces. It is a system where aboriginal peoples are systematically disadvantaged, with the inevitable consequences of overrepresentation in prisons and soaring rates of recidivism. Promising initiatives to address these problems have only recently begun to trump the established policy of blaming the aboriginal community for the heightened levels of criminality. One proposed alternative to the conventional justice process is a model of social healing called sentencing circles. Derived from aboriginal values of reconciliation, the sentencing circle is a physical manifestation of the principles of restorative justice with an adherence to the sentencing provisions in the Criminal Code of Canada. This paper offers a critical evaluation of the potential for sentencing circles to rectify the injustices towards aboriginal peoples in the criminal justice system. It begins with an examination of the differences between aboriginal and Euro- Canadian concepts of justice and why there is a need to seek an alternative form of sentencing. The argument is then put forth that the use of sentencing circles should be confined to aboriginal offenders, as it would be neither cost- efficient nor culturally relevant to implement in all justice systems. Finally, this paper will address the possible impediments to the implementation of sentencing circles in the aboriginal community. The past century has been spent dwelling on unfounded stereotypes to explain the overrepresentation of aboriginal peoples in the Canadian Criminal justice system. It was largely assumed that social pathologies in aboriginal communities1 were to blame for the sad reality that aboriginals embody 2.8 percent of Canada's population yet represent 17 percent of the federal prison population2. This standard practice of condemning the aboriginal populace for their presence in the justice system has become increasingly untenable. The unfortunate reality is one of institutionalized racism, where aboriginal peoples are discriminated against the moment they are placed in the crucible of the Canadian criminal justice system. ...read more.

Middle

himself26 versus the more seasoned judge in the Yukon Territory who requires that the offender plead guilty and express remorse for the crime.27 There are also profound concerns when judges who are unfamiliar with the case attempt to assess the offender for inclusion in a sentencing circle based on degree of remorse or responsibility. In R. v. Antoine, Judge Fitzgerald remarked that "the application this week for a sentencing circle was denied and I indicated that it was denied because I was not satisfied that the level of responsibility was present."28 This value judgment on the part of the presiding judge is deeply problematic as it reflects the misinterpretation of the aboriginal offender that the sentencing circle is designed to rectify. The evidence is well- established that authority figures within the Euro- Canadian justice system often interpret aboriginal behaviors, such as lack of eye contact, as a sign of evasiveness and dishonesty. In reality, the aboriginal offender is reacting in accordance with his cultural values and in response to an intimidating process. It is clear that national standards must be developed to regulate the consistency of sentencing circles throughout the country. The disparity in the criteria for inclusion throughout the nation has a severe impact on the legitimacy of the sentencing circle. While the need for uniformity in the implementation of sentencing circles is undeniable, the positive contributions of this alternative form of sentencing have not gone unnoticed. The primary benefit of the sentencing circle is the deconstruction of barriers between the aboriginal community and the Canadian criminal justice system. The sentencing circle affords the aboriginal community the rare opportunity to participate in the rehabilitation and healing of its members. It is the community in orchestration with the victim and the judge which devises and assumes responsibility for the sentence enacted. The willingness of the community to embrace the offender and strive for reconciliation is evident in this passage from the presiding judge in R. ...read more.

Conclusion

at p.6. 12 Supra, note 3, at para 68. 13 Supra, note 7, at p.248. 14 (1992), 71 C.C.C. (3d) 347, 11 C.R. (4th) 357, [1992] 3 C.N.L.R 116(Y.T. Terr. Ct.), at p. 1. 15 Barry Stuart, Introducing the peacemaking circle: guiding principles viii, 270 leaves, 1999. Thesis (LL.M.) York University. 16 Supra, note 14, at p.357. 17 (1996) 117 New Brunswick Reporter (2nd), at p.124. 18 Hugh J. Benevides. "R. v. Moses and Sentencing Circles: A Case Comment" (1994) 3 Dalhousie Journal of Legal Studies, at p.241. 19 Ibid, at p.242. 20 Julien V. Roberts and Carol LaPrairie. "Sentencing Circles: Some Unanswered Questions" (1996) 39 Criminal L.Q., at p.70. 21 Larissa Behrendt, Aboriginal Dispute Resolution: A Step Towards Self- Determination and Community Autonomy (Australia: Federation Press, 1995), at chap.6. 22 Supra, note 5, at p.38. 23 [2001] 202 Sask. R. 306 (Sask Q.B), at para. 9. 24 (1995), 134 Sask. R. 120 (Sask. C.A.), at pp. 727- 728 25 (1995) 6 W.W.R. 438 (Sask. Prov. Ct.) see also [1996] 1 C.N.L.R., at p.182. 26 (1993) 112 Dominion Law Reporter (4th) (Quebec Court Crim. Pen Div) at p.732. 27 [1993] 1 C.N.L.R. 148 (Y.T Terr Ct.) 28 [1997] O.J No.4078, at para.30. 29 [1992] N.W.T.R. 394 (N.W.T. Ter. Ct) 30 Supra, note 18, p.245. 31 Supra, note 21, at chap.6. 32 Supra, note 20, at p.74. 33 Bill C-41, s. 718.2 (b). 34 Linker, Maureen. "Sentencing Circles and the Dilemma of Difference" (1999) 42 Criminal L.Q. 116, at p.119. 35 Ibid,at p.120. 36 Supra, note 14, at p.368. 37 Supra, note 34, at p.118. 38 Supra, note 5, p.38. 39 Supra, note 18, at p.244. 40 Supra, note 14, at p.382. 41 Supra, note 18, at p.242. 42 Supra, note 11, at p.13. 43 Supra, note 21, at chap.6 44 Gosse, Richard. "Introduction: Charting the Course for Aboriginal Justice Reform Through Aboriginal Self- Government." In Gosse, Richard, Henderson James, and Roger Carter (eds.) "Continuing Poundmaker and Riel's Quest" (Saskatoon, Purich Publishing, 1994), at p.16. 45 Supra, note 21, at chap.6 1 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Machinery of Justice section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Machinery of Justice essays

  1. Marked by a teacher

    Briefly outline the various sentencing options available to the courts for both over and ...

    4 star(s)

    The judge MAY impose a life sentence but can use his discretionary powers to give a lesser sentence where appropriate. * Fixed-term sentence - imprisonment for a set number of months and/or years is called fixed-term sentence, prisoners do not serve the whole sentence but will be released upon completion of half the stated time of imprisonment.

  2. Woolf Reforms

    both parties to use an alternative dispute resolution procedure and facilitating the use of that procedure. The parties will have to show that they genuinely attempted to resolve their dispute through ADR and are not just after a court hearing, as has been the tendency in the past.

  1. Critically evaluate the aims and consequences of sentencing and show how the laws regarding ...

    Obviously, a sentence should reflect the guilt of the offender and also the seriousness of his/her crime. However this brings about some consistency problems as not everyone has the same opinions on things, and therefore no two sentences will ever be alike.

  2. What Impact will Formalising Plea Bargaining have on Justice and Equality in the English ...

    restated that "plea bargaining, in the sense of seeking to extract from a judge an indication of the sentence which he will give if a particular defendant pleads guilty, forms no part of English criminal jurisprudence".10 Today in American courts unlike the English legal system, a system of open-court bargaining replaces trials in most criminal cases.

  1. R v David Smith. - ABH, criminal law

    Smith was trying to evade capture and carry on the chase, not hurt the police officers. This however is very weak and quashed by the aggravating features in Emmins. The case of R v Crimes (1983) bears a number of resemblances to that of David Smith.

  2. Free essay

    Critically discuss whether the criminal courts of England and Wales require substantial reform. Firstly ...

    These events are then transmitted immediately to the web screen. By way of example they may include: prosecution opening speech, prosecution lay evidence, police evidence, defence evidence, closing submissions by the prosecution, judge's summing up, jury in retirement, judgment and sentencing.

  1. Discuss the meaning of 'justice'. Consider the extent to which justice is achieved in ...

    Karl Marx believed that capitalism was unjust, arguing that the cost of protecting the individual was the social interests of the many. Robert Nozick believed that the state should have the minimum possible right to interfere in the affairs of individuals, and they ought to be more concerned with basic needs.

  2. I will look at different black theologies and different theories of justice, and attempt ...

    This condition is known as the "veil of ignorance," and if no one is able to have prior knowledge about his or her future position or statues, then compassion is ensured. This is because no "egoistic" individual would wish to help build a society that leaves them disadvantaged.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work