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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.

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