Section Two

A selection of initiatives that attempt to repair harm from crime and attend to related needs, with some implications for the reduced use or length of custody

Introduction

This section highlights four emerging types of initiatives that are particularly effective in their attempts to provide satisfying justice through an opportunity to address the harm done to people by crime. In so doing they are having some impact on reducing the use or length of imprisonment to achieve justice, although not in all cases.

The first victim and offender mediation emerged spontaneously in Canada in 1974 as a bold initiative by two individuals to persuade a judge to deal differently with two youths who had vandalized property belonging to 22 victims in Elmira, Ontario. The opportunity for offenders to meet their victims face-to-face has since been developed into a program model that has spread not only across North America but also to Europe, Australia, New Zealand and South Africa. As with all sound approaches that are encouraged to grow by becoming institutionalized into the workings of the overall system, they can start to run on "automatic" and risk reducing their inherent potential for rich creativity in providing justice. There are other risks as well and these are discussed. But, by and large, evaluations have shown that this is a satisfying option that can help reduce victims' fears and, far from being "soft on crime", is experienced as demanding accountability and reparation. There are clear benefits to be derived from this process even when it is not intrinsically linked to diversion from prosecution or imprisonment.

Circle sentencing was also born in Canada, as a result of the efforts of a growing number of judges to counteract the futility of the current sentencing process and to respect in Native communities the traditional aboriginal method of dealing with members of the community who broke the law. It is one of the most promising breakthroughs in our western justice system because it can provide for a community-based, pre-sentence advisory process that presents a healthy opportunity for emotional expression of grieving, anger and support, and has a strong focus on accountability, reparation and restoration of peaceful and just relations in the community. It can also have a wider impact on crime prevention because of the number of people it involves in taking responsibility for solving the problems that surface. It is not without its dangers and limitations, however. The potential abuses from power imbalances in the formal and informal relations between members of the community must be watched for all the more carefully in a process that can give the illusion of reassurance that highly democratic principles of participatory decision-making are being respected. Interest is growing in learning from this process what can be adapted for use in urban, non-aboriginal communities. While the goal of circle sentencing is not to keep offenders out of jail, that is still often the outcome when the process of sentencing in a way that makes sense is taken seriously by the judge and the community.

Family group conferencing has emerged in the aboriginal cultures of New Zealand and Australia as another credible, reparative process for communities affected by crime. It tends to bring together a more restricted group of community members than do circles, primarily the victim and offender and as many of their family and supporters as possible. It also utilizes the services of relevant professional or community workers. Conferences offer great potential for satisfying justice because they deal with people's unanswered questions, painful emotions, the issue of accountability and the question of restitution or reparation. The process they have relied on heavily has led to a new understanding in criminology of the role that the human emotion of "shame" can have in bringing about changes in behaviour, but only on the condition that the offender is not made an outcast. Family group conferences seek to achieve this by mobilizing informal community mechanisms to express both disapproval of the conduct of the offender as well as gestures of reacceptance into the community of law-abiding citizens. There is a growing interest in implementing this approach in the U.S. and Canada. It makes eminent sense that reconnecting the offender in a healthy way to family and community is a most effective means to reduce the likelihood of future dangerous behaviour. In New Zealand, it is by law that every case involving youth, except murder and manslaughter, must be referred for a recommendation from this circle-type gathering they call "conferencing", and it is beginning to be requested for adults because judges find it so much more productive to consult the community in this way, and get its real assistance with the issues and problems. While conferences in some jurisdictions can recommend a custodial sentence, in fact they seldom do. Their impact on rates of incarceration should be enhanced as they deal with increasingly serious offences. They are not a panacea but, generally speaking, satisfaction on the part of justice system professionals and the public is much higher compared to their experience of the courts.

Youth justice committees and sentencing panels are also presented in this section of initiatives that attempt to repair harm from crime and attend to related needs, with some implications for the reduced length or use of custody. They involve citizen volunteers or aboriginal elders in determining or recommending dispositions of a case and their decisions often rely on such restorative measures as mediation and victim involvement, restitution and reparation. Some deal as well with the local social conditions contributing to crime. They are operating in both aboriginal and non-aboriginal communities and can take many forms, serving both adults and youth, depending on their mandate.

The above initiatives differ from those selected for presentation in section three in that they feature, by and large, a more community-based and holistic approach to crime, and stronger reparative and restorative elements; but they are not as clearly focused, in the short term, on reducing the use of imprisonment. Over the long term, however, their impact on rates of incarceration may, in fact, prove to be greater.

1. Victim and Offender Mediation - Canada's Gift to the World

Introduction

The first "victim-offender reconciliation" project was set up in the city of Elmira, Ontario near Kitchener in 1974. Representatives of the Mennonite Church, together with a judge and a probation officer, took the bold initiative to bring about mediation in a case which involved two youths who had vandalized property belonging to 22 victims. The judge acted on a suggestion of a probation officer, ordering the two youths to meet with and arrange to compensate each of the victims. The victims and the community liked the approach. It was a starting point for a growing practice of victim-offender reconciliation programs, first on the North American continent, but later on also in Europe, Australia, New Zealand and South Africa.

Strengths

Victim/offender mediation programs provide a unique opportunity for offenders to meet their victims face-to-face in the presence of a trained mediator. The parties have an opportunity to talk about the crime, to express their feelings and concerns, to get answers to their questions, and to negotiate a resolution. Mediators do not impose settlements. The process is meant to empower communication between both parties.

International Development of Victim Offender Mediation Programs

Country Number of Victim Offender
Mediation Programs
Australia 5
Austria Available in all jurisdictions
Belgium 8
Canada 26
England 20
Finland 130
France 40
Germany 293
New Zealand Available in all jurisdictions
Norway 54
South Africa 1
Scotland 2
United States 15

Source: The Network Interaction Spring 1996

In many situations, mediation can be an alternative to the courts and to custody, used as a means of resolving the issues and needs which arise from criminal behaviour. Frequently, it is experienced as more satisfying, more inclusive and more relevant than imprisonment. However, mediation is also used in addition to, during or following incarceration in order to address the needs of those affected by crime which are not addressed by imprisonment. In some situations (such as the victim/offender projects in New Brunswick and British Columbia), the use of mediation is not directly related to the reduction of the use or length of incarceration. In fact there is some concern that the possibility of such reduction may lead to offender involvement for the wrong reasons. Successful and meaningful mediation may indeed result in reduced recidivism on the part of the offender and eliminate harsh demands for punitive sanctions on the part of the victim; however, it is important to note that those often are consequences of mediation rather than the goals for some programs.

As an alternative, mediation exists for adults primarily at the point of post-conviction sentencing while for youths it is more often available instead of going to court.

Mediation has the potential to help reshape how society and its formal institutions respond to crime, shifting from a traditional concept of the "crown vs. the accused" to take in the victim, offender and the community. Participants often view mediation as a positive experience, realizing it has a strong effect in humanizing the justice system. Many victims have acknowledged that their sense of vulnerability and anxiety can be reduced following a face-to-face mediation. Significantly, the victim and the offender have the opportunity to be creators of justice rather than its passive recipients.

[quotation]

While VORP (Victim Offender Reconciliation Program) can serve as a partial or total substitute for incarceration for many offenders, it is not the solution to jail and prison overcrowding. At best, VORP can strengthen broader public policy efforts in limiting incarceration.

Crime and Reconciliation, Mark Umbreit

Cautions

Nevertheless, there are many practical concerns about mediation. Its strongest advocates worry that mediation will be promoted more for reasons of expediency and cost than for creating a higher quality of justice. As victim-offender mediation expands and courts the risk of becoming more institutionalized, there is the danger that more and more it will accommodate the "dominant system of retributive justice, rather than influence the present system to alter its model to incorporate a more restorative vision of justice upon which victim-offender mediation is based." (Umbreit, Coates, Picard)

A major concern is the issue of choice and avoiding any element of re-victimization of victims who should be allowed various options to regain a sense of power and control in their lives. This is true at all ages but has been a particular issue for mediation programs involving young offenders; there have been examples where a youth's due process rights have been ignored.

Although the practice of mediation has grown substantially these past 20 years, its impact on the justice system continues to be marginal in many jurisdictions with too many programs receiving few referrals. Umbreit and others argue for a pro-active and assertive referral process to overcome this obstacle.

The following examples demonstrate how mediation is being used in a variety of ways in an attempt to achieve more satisfying justice.

Comparison of English, Canadian and U.S. Studies of Victims and Offenders Participating in Mediation

  Combined English Sites (2) Combined Canadian Sites (4) Combined U.S. Sites (4)
Victim satisfaction with criminal justice system response to their case: referral to mediation 62% 78% 79%
Offender satisfaction with criminal justice system response to their case: referral to mediation 79% 74% 87%
Victim satisfaction with mediation outcome 84% 89% 90%
Offender satisfaction with mediation outcome 100% 91% 91%
Victim fear of re-victimization by same offender, following mediation 16%
(50% less than victims who were not in mediation)
11%
(64% less than victims who were not in mediation)
10%
(56% less than prior to mediation for same victims)
Victim perceptions of fairness in criminal justice system response to their case: referral to mediation 59% 80% 83%
Offender perceptions of fairness of criminal justice system response to their case: referral to mediation 89% 80% 89%

Source: Interaction Spring 1996 (The Network Interaction for Conflict Resolution)

There are a number of similar mediation programs in the country bringing together victim and offender. To give the reader a flavour of how mediation works, we feature first a story based on a case sent to us by an Ottawa dispute resolution centre. We follow up on that story with a brief description of mediation programs in Ottawa, Moncton and Edmonton respectively.

A Post-Charge Mediation Model, Canada

A Story

This story is about a 49-year-old man named Arthur who was facing numerous break and enter charges and already had served four and a half years in prison over the past eight years because of a lengthy criminal record, comprised of numerous charges of Possession of Narcotics, Trafficking and Theft. After being charged with the current offences, Arthur confessed to at least 75 other Break and Enters which had occurred over a four-month period in the same region. The Crown wanted a nine to twelve-month prison sentence if the accused pleaded guilty.

The victims of this particular Break and Enter, homeowners Chris and Debbie, had arrived home to find that the exterior lights had been twisted to darken the front of the house and their front door had been forced open. Police were dispatched to the area along with a Police Services dog. The track of the suspects was traced to a nearby residence where a smashed rear door was located and Arthur was found inside. He was arrested in possession of some of the property stolen from Chris and Debbie; he appeared to be under the influence of non-medication drugs. A second suspect, presumably in possession of the remaining $1,800 of goods taken from Chris and Debbie, was never located. Arthur was treated in hospital for dog bites and held for a bail hearing.

By the time Arthur's defence lawyer met with the Assistant Crown, Arthur had taken several initiatives to get help with his alcohol and drug problem and to turn his life around. He was being monitored medically and was doing well in a course he was taking in "Management of Non-Profit Organizations". When the defence lawyer requested that a pre-sentence report be prepared, it occurred to the Assistant Crown that this was a case that might be appropriate for mediation. He asked for this possibility to be explored by the Criminal Court Pre-Trial Mediation Program operated by the Dispute Resolution Centre for Ottawa-Carleton, "based on the accused's attempts at rehabilitation".

Chris was very open to trying out the mediation process because he had been "pre-sensitized" by his own life history; he had had a serious drinking problem and had even lived for a period on the streets before overcoming his addiction and becoming a successful businessman. His wife Debbie, however, had been too traumatized by the offence to take part; one of the items that had not been recovered was a pendant that held deep-seated emotional value for her because it had been given to her in honour of her granddaughter (it said "#1 Grandmother"); the little granddaughter had since died, and that death had also stirred up painful memories of a child she herself had lost years ago.

During the mediation, Chris was very forceful in confronting Arthur on his sincerity about wanting to turn his life around; he scrutinized him for any sign that this may just be another "con" job. On the other hand, he also served as an inspiration to Arthur that turning one's life around is possible. Chris was also very powerful in conveying to Arthur that his offence had done irreparably more harm to Debbie than Arthur had ever considered. For Arthur, it was clearly much harder to face the complainant in mediation than to simply "take his knocks" from the criminal justice system. But he had decided to do it as part of the steps he was taking to genuinely turn around his life.

Mediation Agreement (between Chris and Arthur)

  1. Arthur and Chris were glad to have had the opportunity to meet in mediation and mutually agreed that the mediation was a positive step in the recovery process.
  2. Having had this opportunity, Chris advised Arthur that he no longer has feelings of bitterness or animosity towards him.
  3. Arthur advised Chris that he has feelings of shame, guilt, and remorse for any upset caused by the incident. Chris accepted Arthur's apology as sincere.
  4. Both parties agreed that they share similar backgrounds.
  5. Chris stated that he is glad Arthur is in recovery and expressed that if Arthur continues in recovery it will benefit not only himself but also others.
  6. Both Chris and Arthur agree that restitution would serve no purpose as items of sentimental value can never be replaced.
  7. Chris agrees to pass Arthur's apologies on to his wife for the loss of the irreplaceable items of sentimental value.
  8. Arthur and Chris agreed that when they attend the Christmas and New Year's 24-hour meetings of AA, they will meet as friends. Further, should they run into each other in the future, their greeting will include a handshake.
  9. Chris wished Arthur luck and success in the future. Further, he wished to advise the Crown Attorney that he hoped this agreement would be taken into consideration when a determination is made on disposition of all charges against Arthur.

Disposition

The Crown noted in the file that "mediation was a great success". Crown's position on sentence moved from asking initially for a prison sentence of up to one year to requesting a suspended sentence, two years on probation, conditions to refrain from drugs and alcohol. That is the sentence that was imposed.

Program Descriptions

(i) Dispute Resolution Centre for Ottawa-Carleton

September 1989 marked the start of the Dispute Resolution Centre for Ottawa-Carleton's involvement in an adult post-charge, pre-trial Mediation program, among the first of its kind in Ontario. In 1993, the centre initiated the same type of mediation program for youth not eligible for diversion under the alternative measures option.

Mediation is a confidential process. The Dispute Resolution Centre has an undertaking from the Crown Attorney that they will not be forced to give any information about matters covered in the course of a mediation. Generally, the criteria considered in assessing suitability of mediation in criminal cases includes: age differential between the accused and complainant if the latter is under the age of 18; the nature of the crime - the centre will not mediate breaches, offences of a sexual nature or if there is a previous similar charge and/or conviction; the degree of fear of the victim in relation to the accused, excessive violence and/or serious injuries in the crime, or use of guns; diagnosed psychiatric impairment; and cases related to an "abusive" spousal relationship.

Contact:

Dispute Resolution Centre for Ottawa-Carleton
161 Elgin Street
Room 3107
Ottawa,Ontario
K2P 2K1
Tel. (613) 239-1501
Fax (613) 239-1214

[quotation]

" Victim offender mediation teaches kids that 'what I did affected real people'... paying restitution as a consequence for their behaviour is part of growing up."

Oakland judge

(ii) The Edmonton Victim-Offender Mediation Project

The Edmonton Victim Offender Mediation Project is a one-year pilot project, currently being evaluated, that tried to demonstrate the viability of using mediation to resolve matters in selected cases involving adults facing criminal charges. The project received referrals from the police and the Crown on both a pre-charge and post-charge basis for minor offences, i.e. theft under, possession of stolen property, mischief or minor assault. An interim report on the project noted that approximately 40 to 50 per cent of referrals result in actual mediation as it depends on Crown approval and the voluntary participation of both parties.

However, at that time, over 20 mediations resulted in an agreement. Victim-offender mediation programs typically have a resolution rate of between 85 and 95 per cent.

Jeff Sermet, a third-year law student involved in the project, says that the courts are not designed to address the specific circumstances of events that lead to criminal charges. "They're punitive and designed to sentence, not to get to the root causes of crimes. As criminal lawyers, we're going to need to put resolving crimes at the forefront rather than looking for a band-aid solution."

The mediation project was privately sponsored by the Elizabeth Fry, John Howard Society and community partners.

Contact:

Maureen Collins
Executive Director
Edmonton John Howard Society
Suite 301- 10526 Jasper Avenue
Edmonton, Alberta
T5J 1Z7
Tel. (403) 428-7590
Fax (403) 425-1549

(iii) Pre-Sentencing Mediation Pilot Project - MOVE, Moncton, New Brunswick

In 1993, MOVE Inc. operated a Pre-sentencing Court Mediation pilot project in conjunction with the New Brunswick Department of Justice. MOVE offered mediation services for 30 cases selected by the Moncton courts. By utilizing a process of dialogue, understanding and interaction between victims and offenders, mutually acceptable restitution agreements were reached in all of the 25 cases that came to full mediation. Judges in seven of those 25 cases stated explicitly that jail would have been "appropriate" had the offender not participated in mediation.

The pilot was well received by the Justice Department who recognized the potential for diverting a number of cases from the adversarial process presently used to one in which mediation is used as a tool to bring resolution to crime. They believed that the project was successful in meeting its objectives which were to: affect reconciliation and understanding between victims and offenders; facilitate the reaching of an agreement between the victims and offenders regarding reparation; involve community people in work with problems that normally lead to conflict with the criminal justice system; and identify crime that can be successfully dealt with in the community.

Contact:

Wendy Keats
MOVE, Inc
P.O. Box 457
Salisbury, New Brunswick
E0A 3E0
Tel. (506) 372-4522
Fax (506) 372-8013

Genesee County Victim-Offender Program Genesee, New York

A Story

This story concerns the surviving family of a man who was killed by a drunk driver who had been sentenced to six months in jail and five years probation.

The story of Connie Whittier...speaks eloquently to the impact of Genesee County's Community Service/Victim's Rights services and its victim/offender reconciliation program.

...David Whittier was an Orleans County deputy sheriff who was pinned by a drunk driver between his patrol car and an abandoned vehicle... He died nine months later, without having the chance to meet the driver, John, who was sentenced to serve six months in jail and five years' probation. His wife had the chance through an Orleans County branch of Genesee County's victim/offender reconciliation program.

"After David died, I still didn't know what this man looked like," Mrs. Whittier told Texas officials, in the area to get ideas for setting up a similar program in their state. "I didn't know if he was standing in line behind me in the grocery store. I didn't know if he was the man I said 'hello' to on the street."

David Whittier had wanted to tell John that he was forgiven, and asked his wife to do that for him. But she didn't feel she could do that. She wanted to tell the drunk driver how she hated him, how he had ruined her life.

Mrs. Whittier and her children met with John for two hours in 1990, without lawyers, police or any other members of the criminal justice system present. There she was able to express all the pain and anger she felt. John had to sit and listen. In the end, Mrs. Whittier says she left still angry, but in a different way.

"I'm angry at him for what he did... that he took my husband's life. But I know now, after meeting with him, that John is always going to live with that. That he killed another man."

John had to face his responsibility for that pain and anger, as he never had to in court.

That is healing.

Our justice system attempts to describe human pain in terms of prison time. How long, and how severely, do you punish someone who has inflicted pain on someone else? The only way civilized society can deal with wrongdoing is to objectify it, to separate emotion from reason. Otherwise, we'd all be at the mercy of those who wanted revenge for real or imagined hurts. But when pain is objectified, the victim is dehumanized. The victim/offender reconciliation program heals people...

(Excerpted from the editorial Recognizing the Pain, The Daily News, January 10, 1994)

Program Description

What is distinctive about the Genesee County program is that it usually brings together victims and offenders very close to the crime, within hours of the crime taking place, and it gives priority to providing care to victims dealing with trauma. Volunteers and staff work to do victim assistance that is very intensive - right down to the crime scene cleanup. Mediators create comprehensive victim impact statements, and then bring everyone involved, including the district attorney, together. The mediators begin putting together a sentencing package with input from the victim, the offender and the community.

Genesee County has a total of 42 jail cells while a neighbouring county built and quickly filled some 300 cells, following a more conventional crime and punishment route.

Citizens feel that Genesee County doesn't need 300 cells because they have a community that feels safer than the one beside it, because the community is tremendously involved at virtually every level. The community placements for offenders are very visible. There's tremendous accountability to the community.

Contact:

Dennis Whitman
Director
Community Services - Victims Assistance Programs
County Building I
Batavia, N.Y. 14020
Tel. (716) 344-2550 (ext. 226)
Fax (716) 344-2442

Victim-Offender Mediation Service for Violent and Non-Violent Crimes - Langley, British Columbia and Moncton, New Brunswick

Program Description

The program described here is the Victim Offender Mediation Program run by the Fraser Region Community Justice Initiatives Association; it is similar to the victim/offender mediation service for serious violent and non-violent crimes operated by MOVE in New Brunswick. Because of the serious nature of the crimes, this program is not a diversion from the traditional criminal justice system including imprisonment. Its purpose is to address the deep and varied needs that arise when a crime is committed and which are not addressed by the traditional system. (See story illustrating these programs in the section, What Do We Mean by Satisfying Justice?)

The Victim Offender Mediation Program (VOMP) is an innovative program designed to meet the need for healing and closure for people involved in, or affected by, the most serious crimes in the Canadian Criminal Code. The program has worked successfully with victims and offenders of crimes as serious as serial rape, aggravated assault, armed robbery, and with the families of the victims in criminal negligence causing death, manslaughter, and murder cases.

The purpose of the program is to assist people by:

  • addressing questions and concerns regarding the offender's eventual release into the community;
  • empowering participants to address issues and concerns surrounding the crime and its consequences;
  • providing the parties with a process which can lead to new insight and understanding thereby reducing levels of fear and anxiety; and,
  • providing sensitive staff who are committed to being agents of healing and restoration for those who suffer crime's effects.

Victims and offenders participating in VOMP report that their needs and concerns have been addressed through this program in ways that do justice and produce closure beyond what the Criminal Justice System has been able to do. In describing their experience of the program, healing is the word participants choose time and again.

The offenders' involvement in the Victim Offender Mediation Program is important because: offenders are the only ones who have answers to many of the victim's questions; only offenders can take responsibility for their crime in a way that is meaningful to the victims; offenders need to face the reality that their crimes affected people, not just the "state", and that the harm done continues; in cases where offenders will be back on the streets, it is critical that they have become aware of the victim's pain. Many offenders report that awareness happens most powerfully when they hear of the harm from the ones they have victimized.

Facilitating contact between victims and offenders in serious and violent crimes is new, and there are a number of important questions and issues that still need to be worked through. However, such initiatives push the principles of restorative justice into the arena of our most serious crimes and hold out the promise of more meaningful responses to crime, with more implications for community involvement and incarceration rates than are currently offered by the criminal justice system.

Contact:

Dave Gustafson
Fraser Region Community Justice Initiatives Assoc.
101 - 20678 Eastleigh Crescent
Langley, British Columbia
V3A 4C4
Tel. (604) 534-5515
Fax (604) 534-6989

Wendy Keats
MOVE, Inc
P.O. Box 457
Salisbury, New Brunswick
E0A 3E0
Tel. (506) 372-4522
Fax (506) 372-8013

2. Circle Sentencing

Introduction

Circle sentencing entered our legal jargon in 1992 when Judge Barry Stuart of the Yukon Territories delivered his decision in the case of Philip Moses. Stuart relied on a traditional aboriginal method of dealing with members of the community who broke the law. Still in its infancy in the western justice system, circle sentencing usually provides for a community-based, pre-sentence advisory process with a strong reparative and restorative focus.

The goal of circle sentencing is not necessarily to keep offenders out of jail, yet that is still an outcome of many circles, especially for property crimes and even some more serious cases. A serious, non-custodial community sentence replaces a jail term.

There are variations of circle sentencing operating in different parts of Canada, including sentence advisory committees, elders' or community sentencing panels and community mediation committees. For example, in Cumberland House, Saskatchewan, there are pre-charge sentencing circles; the RCMP refers about six cases per month without having to go through court. Recommendations from those circles are then passed on to the court.

In post-trial circles, once there has been a finding or admission of guilt, community members sit in a circle with the judge, prosecutor, defence counsel, police and other service providers to discuss sentencing options and plans to reintegrate the offender back into the community. Community members usually include the accused, victim, their families, elders and other interested citizens. There is little formal structure or script for a circle, their use and arrangement varying from community to community, judge to judge. Generally, everyone is welcome, a prayer is offered, participants introduce themselves, the facts of the case are presented and crown and defence counsel provide opening remarks. Many circles last three to four hours as everyone is then given the opportunity to speak, the ultimate goal being to come to a consensus or resolution.

So far, circles have been used largely in aboriginal communities and with adults more than young offenders. As our stories in this section will illustrate, they can deal with even quite serious criminal offences such as manslaughter or armed robbery where a jail term may or may not be imposed; however, the community has the opportunity to address social problems and other harm related to the crime. Circles are also being adapted and tried in urban and non-native settings.

[quotation]

"Clearly there's nothing to lose by trying it. The system has not worked up to now. It hasn't resolved the issues and reintegrated people into the community. Traditionally, if somebody is charged with assault, the barrier between the victim and the accused will never heal within the traditional court process because there's no mechanism for that to happen. But if you involve the community, you open up an opportunity for something very positive to happen. You open up the possibility of forgiveness and reconciliation so people can get on with their lives. In small communities this is absolutely critical."

Judge Bria Hucaluk, Saskatchewan

The objectives of sentencing circles include restitution to the victim, reparation to the community, responsibility being accepted by the offender, reconciliation between the victim, offender and community members wherever possible, reintegration of the offender into the community and prevention of recidivism.

Different judges have listed criteria for determining if a case should go to a sentencing circle. Common on most lists are:

  • the initiative for alternative sentencing should come from within the community, although some circles are initiated by the judge or at the request of the offender or counsel;
  • the offender must agree to the circle, take responsibility for the offence and desire rehabilitation;
  • the community must be prepared to assist and support the offender during and after the sentence;
  • there needs to be elders or non-political community leaders willing to participate;
  • the victim agrees to participate without coercion (in cases of physical or sexual assault, including battered spouses, there should be counselling provided and the victim should be accompanied by a support team in the circle);
  • the judge involved in an alternative sentencing case cannot abandon basic judicial principles.

If the conditions of the circle plan are not followed, the sentence can be referred back to the judge for alteration.

Strengths

In the opinion of Judge Bria Hucaluk of Saskatchewan, the traditional legal system has not provided satisfying justice because recidivism rates are high and there is no method to tackle the root causes of crime.

Circle sentencing offers a way to secure community commitment to help the offender and victim; for example, there is more than a probation officer checking up on the offender to ensure he abides by the circle plan. Untapped community resources emerge in a circle to assist justice professionals. Communities and individual families are often strengthened in being able to talk about and deal with their problems. Circles have contributed to community health, healing and harmony.

Offenders are confronted with the consequences of their crimes and become more aware of the suffering they inflicted and the subsequent disapproval of family, friends and community. Cal Albright of the Federation of Saskatchewan Indians calls this the "good pain" associated with healing circles, contrasting it to the courts' "bad pain" in stigmatizing the accused which only reinforces destructive feelings.

There is the perception that some will ask for a circle in the belief that they will get off easy. The circle process should be able to unmask that insincerity.

Some participants indicate that they can be themselves, especially in freely expressing painful emotions; they appreciate a circle's informal setting where there is less legal language and the chance to address one another by first names. As one judge noted, "two pictures of the offender often emerge. We see the bad guy but we see the guy is also more than just his crime. The circle builds on the strengths of the offender and the victim."

Cautions

There are several challenges facing circle sentencing, paramount among them ensuring a safe and equal place for victims, as well as determining which cases are appropriate to be referred and what is the identifiable community for the crime.

There have been isolated examples of sexual assault cases done in circles in small communities which ignored prevailing male dominant influences or failed to assure support for victims.

There is worry that circles which are dominated by criminal justice or other professionals will undermine their key benefit of community participation. There is an ongoing challenge to have the circles genuinely community based, reducing the number of professionals and their role.

Sentencing plans can ignore power imbalances and be undermined by poor infrastructure or too few resources in the community.

Pioneers of circles have also warned other communities not to replicate what the north and native communities are doing but to adapt the justice approach to fit their own local reality. On the other hand, the philosophy and spirituality of circles are integral to their success.

The evolution of circle sentencing has been intertwined with matters related to Native self-government and, as well, has raised issues touching on the question of judicial independence. This must be carefully considered in any adaptation of circles in any other setting.

Conclusion

It is premature to draw any firm conclusions about the impact of circle sentencing. Certainly, in its evolution, there will be mistakes, bad circle law will emerge as surely as there is bad court law. Some lawyers will be frustrated, too, by an absence of any concise set of rules and guidelines governing their application. They are no panacea for crime but, given the many benefits reported by communities, it may be wise to recall the words of Judge Barry Stuart. He advises people to compare the results from sentencing circles to the results in existing courts, not to perfection. Circles will require community consultation, proper education and training, participation of all members of the community and close evaluation. For the moment, the healing and empowerment flowing from the circles seem to outweigh other growing pains.

Sentencing Circles Cumberland House, Saskatchewan

The first sentencing circle story is actually located in Section One, featuring the Kwanlin Dun Community Justice project. Here, Don McKay, community co-ordinator at Cumberland House, describes how the circle justice process matured in his community over time.

"... first few sentencing circles started off tentatively because everyone involved was still intimidated by the process. It was like court all over again. The judge was there, lawyers, policemen in uniform. It started off really slowly. Everyone was so used to the court system as it was then, when the judge and lawyers would fly in, hold court and fly out again once or twice a month. Neither victim nor offender would speak up because they were intimidated. In court the offender would just want to get it over with so he would plead guilty. It was only after the trial was over and the judge had sentenced him that he started asking questions. After a foundation of trust and credibility had been laid down for the sentencing circles in Cumberland House, however, the people involved began opening up. They were less intimidated. We were able to communicate in our own language and because everyone knew family histories of the offender and victim, things were placed in context. Sometimes there was no sentence imposed on the offender because the reconciliation and restitution took place in the circle. Also, alcohol, drug and other counsellors are included in the circle so if the offender has to take treatment, everyone knows. If young offenders are involved, we always include the parents in the circle."

Contact:

Don McKay
Cumberland House Cree Nations
Box 220
Cumberland House, Saskatchewan
Tel. (306) 888-2226
Fax (306) 888-2084

Urban Circles - Armed Robbery in Saskatoon

The following story highlights the experience of a victim who was choked during an armed robbery. The suspect was facing the prospect of a nine to twelve-year prison term. This sentencing circle was held in a city and illustrates the sometimes conflicting expectations of sentencing.

A Story

This past April, Dee-Anna Bryson participated in a unique and experimental judicial process in Saskatoon -- the Sentencing Circle. For the first time in Canada this procedure was pioneered in an urban setting.

Almost one year ago Ivan Morin and Brian Janzen robbed a gas station of $131. and assaulted two attendants on duty. Because Dee-Anna called 911 during the robbery, the offenders were quickly apprehended and charged with "robbery with violence". Janzen pleaded guilty and received a three-year sentence. Ivan Morin had spent 18 of his 34 years in prison, including an earlier nine-year armed robbery conviction. The crown wanted a sentence in the range of nine to twelve years. Morin initially pleaded not guilty, but later changed his plea and, because he is Métis, requested a circle. Justice J.D. Milliken agreed, and on April 15 the innovative process of a Sentencing Circle took place. Following a full day of careful consideration from many perspectives, Justice Milliken indicated that he would follow the recommendations of the Circle if he considered them to be reasonable.

....Sentencing is not an end in itself, but a means to an end -- namely restoring harmony within the individual and within the community; consequently, all those affected or involved in some capacity with the case are included in the Circle. Since Dee-Anna was a victim of the crime -- Ivan Morin had choked her -- she and her mother agreed to participate in the Circle. Justice Milliken mediated the process....

The Circle process involves looking at the accused and assessing whether he or she is a good prospect for rehabilitation. It also includes an assessment of the offender's community and family context to determine if they wish to accept the responsibility of assisting in the offender's rehabilitation. Finally, through a consensual process, the group determines a suitable sentence.

Justice Milliken began by requesting that all be open and honest, and behave with respect towards each other throughout the process. The configuration of the circle is appropriate for it denotes the equality of all; it is a symbol of harmony and the goal for all present is the same. To begin, the prosecutor outlined the facts of the case. Following this, the defence attorney told of Ivan's life as a victim himself. The next person to be heard was Ivan ... He apologized to Dee-Anna, talked about his life and his desire to turn things around. The four representatives of the Métis community and the Métis Elder described the hardships faced by Métis children and adults in our society that stem from a very real racism. They also indicated their willingness to support Ivan in his reformation. They felt that incarceration would not help him. The Métis Elder was willing to give him a job for he had known Ivan through his rough times, but was convinced that he was a decent fellow and that alcohol caused him and others a lot of grief. Many in the Circle felt to some extent that Ivan should get a jail term, particularly officials of the justice system. The Métis officer challenged Ivan as to what he intended to do about his own rehabilitation. The gas station owner felt that Ivan had done wrong and should be incarcerated.

For Dee-Anna, the process of that day was intense and complex. Many layers of emotion and point of view required a draining concentration. She felt no anger and sympathized with the difficulty in the lives of Métis. With regard to Ivan, Dee-Anna indicated that he was intelligent, that he had worked as a newspaper reporter. She also indicated that he appeared remorseful. She perceived that he resented authority and feared a white court. It was very apparent that he had a very serious problem with alcohol; when he was attending AA and not drinking, he had been successful, productive and happy. She felt that he was evading action and the issue of his crime. For his rehabilitation to work, Dee-Anna felt that it was marvellous that his community was committed to supporting him, but that he himself must make the commitment to reform. She was frustrated for a time because the Métis representatives offered no alternative suggestions if he didn't go to jail. She also recognized the risk that faced the Métis community. The success of this initial experiment with a Sentencing Circle will be the measure for its reputation and future use. Dee-Anna herself did not participate in the sentencing aspect of the Circle. Dee-Anna's mother was able to express her anger at Ivan Morin for the injury inflicted on her daughter. Dee-Anna suggested that the process was probably therapeutic for her mother.

For Dee-Anna the process was wide-open. Individuals could express themselves freely and emotionally. Some challenged the offender, and the offender had to face his victims and the consequences of his action. It worked, and from Dee-Anna's perspective it would be desirable to use it again in similar circumstances, although she felt that some crimes would be too overwhelming for Sentencing Circles.

The process was long and intense, requiring careful listening, but through a process of distillation, consensus was achieved. The essentially wise element of trying to assure rehabilitation of the offender was critical; such a practical goal holds the promise that reformed offenders will not become repeat offenders. When asked if she was confident in the rehabilitation of Ivan Morin, Dee-Ann indicated that she could not "see into his heart". Uncertain as to whether he was motivated by a true desire to rehabilitate himself, she said she couldn't be sure, but that she fervently hopes that he will be successful in turning his life around.

(excerpted from STM Newsletter, St. Thomas More College & Newman Alumni)

The Rest of the Story: Sentence and an Appeal

The sentencing circle recommended Morin serve an 18-month jail term; should he be released early, he would be subject to electronic monitoring or house arrest for the balance of time to be served. As well, he would enter a drug and alcohol rehabilitation program after his release from prison, be on probation for one year and perform 140 hours of community work that would include 100 hours at the Métis Community Centre and 40 hours for the owner of the gas station. On June 15, Justice Milliken agreed with all the recommendations with the exception that he extended Morin's probation to 18 months.

On a Crown appeal, the Saskatchewan Court of Appeal added 15 months to Morin's sentence. The defence has now appealed the case to the Supreme Court of Canada.

Defence lawyer Kearney Healy described the circle as "infinitely superior" to anything he had experienced in 15 years of legal work. At first, the circle was "polarized" between those who did and did not want jail for Morin. "But it was a good circle in the process that took over," he said. "In the end, it still came down to the traditional idea that a price had to be paid for the crime - this was articulated by the police. There were many community supporters who did not want jail."

Healey noted that a successful circle depends on correctly identifying the proper community of the offender and the crime. In Morin's case, the community could be one of many - his Métis community, the geographical area where he lived, those who have some moral persuasion or caring relationship to him or those affected by the crime.

[quotation]

"I could sentence somebody in three minutes, so if I didn't think the sentencing circles were a benefit to the community and to the process of justice, I wouldn't spend four hours each time participating in them,"

Judge Bria Hucaluk, Saskatchewan

Another Urban Circle

Another urban circle Healey participated in involved a man with no previous record who was charged with armed robbery. The Crown asked for a three-year penitentiary term. The circle agreed to a three-year suspended sentence with six months electronic monitoring and other conditions. At the outset, the judge in this case wanted assurances that the victim would be treated properly in the circle and that the offender was held accountable, was remorseful and had community support.

Contact:

Kearney Healy
Saskatchewan Legal Aid Commission
10th Floor - Sturdy Stone Centre
122- 3rd Avenue North
Saskatoon, Canada
S7K 2H6
Tel. (306) 933-7820
Fax (306) 933-7827

[article]

Serving on Sentencing Circle Attitude-Changing Experience

by Kenneth Nosklye

Last week I was involved in one of the most incredible experiences of my life. I was asked to sentence a man who had committed an armed robbery.

There were more than 30 people in this sentencing circle. Police, family, university professors, aboriginal elders and even a captain from the armed forces. Of course, there were also the accused, the victim, the judge, lawyer, representatives from probation and the Crown prosecutor.

The man is a 27-year-old aboriginal man, married with one child. He has never been in trouble before. He is a graduate of the University of Saskatchewan. He is a man who had done thousands of hours of community work, all as a volunteer. He comes from a very loving and stable family. So, what happened?

One year ago this month, the man became addicted to video lottery terminals (VLT). He spent all the money his family had on VLTs, he even spent the family's Christmas money. In desperation, he decided he would rob a business. He had a knife in his hand, with his face covered, when he walked into a Saskatoon gas station. He demanded money, he got $68.00 He tried to make a clean get-away but was spotted by a man as he ran out of the gas station and towards his car. The man took down the license plate number. It didn't take long before the police knocked on his door. He immediately confessed and wanted to plead guilty to all charges. His lawyer suggested a sentencing circle and the Crown agreed.

The Crown at the sentencing circle said: "If there was ever a need for a sentencing circle, it is this case." We heard from the Crown, who wanted to send the man to prison. We heard from the victim, who supported the process of sentencing circle. We heard from the man's family, who gave a powerful presentation, asking us not to send him to prison. We heard from the lawyer. We heard from the accused and we heard from every single person in the circle.

Finally the big moment came. The judge would weigh all the facts, take into consideration all the presentations and pass a sentence. The man was sentenced to a three-year suspended sentence, including having to wear a monitor for six months. There was also a number of conditions placed on his sentence: attend a gambling addictions program; work with aboriginal elders; and 400 hours of community work.

Recently there has been a lot of criticism of sentencing circles. I, too, I must confess, have had my doubts of the process. But, after this experience, my belief in the process is restored. There is no better form of justice than the justice bestowed by the public.

After all, this case was not a man before one judge, with one lawyer and one prosecutor. This was a case where he had to appear before a large number of people, including his victim. This wasn't a case where a bunch of legal mumbo jumbo was argued. This was a case of man and his victim. Even the arresting officers in this man's case didn't want to send him to prison - this fact wouldn't have been heard in a regular courtroom.

A regular court would have heard about the man's past from a generally biased pre-sentence report. In this case, we heard all about the man's past directly from his parents, family and many others.

I now believe sentencing circles are an evolution of a system that only cared about protecting the system, with no consideration of the human aspect. Sentencing circles take the human approach. This is a profound approach to a system that needs a touch of humanity.

[end of article]

(Prince Albert Daily Herald)

Manslaughter Case in Fort St. John, British Columbia

This story illustrates the serious offences being referred to sentencing circles; a custodial sentence sometimes results anyway, but with other reparative healing taking place.

[quotation]

"This circle can only partially be described and must be experienced to understand its spiritual power and effects.... The family and friends of the deceased were given opportunity to express (to the offender) their anger, hurts and sorrow for what has happened. What more can an offender ask than the freedom to comment on and agree on a suggested sentence he is to receive, or minutes before he goes to the prison cell be encouraged by the Judge to speak to those he hurt so many months ago in his distraught and drunken condition. If in our other courts, assaulted persons, victims of drunken driving, had this circle opportunity they might heal more easily if they would openly face the accused. This process brought the wheel of justice full circle and included the whole community..... At the end of the day community and estranged families sat down to eat at the same time. May the courts find the courage to include this vital link for reconciliation and rehabilitation of the victims and offenders in our communities."

Martin Goerzen Clinical Counsellor, Fort St. John

On Feb. 8th, 1994, after hearing of the death of his closest friend in a car accident, Saviour Stoney began drinking. Much later, Stoney picked up a gun, a shot was fired and Molly Apassin, his sister-in-law, lay dead. (Molly was sister to Stoney's wife who had died in a car accident two decades earlier).

On June 8, B.C. Supreme Court Judge P.J. Millward together with Crown and defence agreed on a guilty plea for the lesser charge of manslaughter, dismissing the jury.

Both the victim's family and accused's family were interested in using circle sentencing. Justice Millward announced Aug. 16 as the date for sentencing, to be preceded by a circle sentencing hearing on August 14 and 15 if necessary.

The community prepared for this circle based on a photocopied paper written by Justice Barry Stuart of the Yukon Territory, passed on by the Victim Offender Reconciliation Program at Langley, B.C. The court asked Martin Goerzen, a clinical counsellor who had made Judge Stuart's material available, to organize the circle. Goerzin relates what happened:

"The Court agreed that preparatory information sessions and workshops for participants would be helpful. Regrettably there was no thought given to financing the circle sentencing process.

Several meetings were held with Judge Stuart. A workshop and information sessions to precede Stoney's sentencing circle were planned in August, with preliminary consultation about the program with the victim family and relatives, chief of the Indian band, the court's trial coordinator, Crown, defence and probation. The workshop facilitators were community workers from Kwanlin Dun First Nation and Carcross Band in the Yukon. People from all the Treaty 8 First Nations, court workers, RCMP, law offices and general public were invited.

Saviour was concerned about what he would say in the circle to those he had offended. We suggested that he simply speak out clearly and from the heart, no more could be asked of him. He said he was so sorry for what he had done.

So many members of the Doig River Indian Band were suffering from the death of Molly Apassin who had been their teacher of native ways and their religious leader.

Harold prayed for guidance and for the presence of the Creator while all participants held hands.... The feather was passed from one person to the next clockwise around the circle and we were all ready with heart, mind and soul to introduce ourselves and say something about why we're here. The tradition of passing the feather around was that each person was honoured and welcomed by all because what one had to say was important for oneself and for others. The circle was a safe place to express our feelings because we were asked to leave what you hear in the circle; it was not to be talked about outside. Among the 30 persons were expressions of learning and long pent-up feelings of hurt, guilt, frustration, anger, revenge and forgiveness.

Sunday morning, the Kwanlin Dun leaders and Ben Cardinal met with the offender, Saviour Stoney and his son. It was an opportunity to prepare them for the circle tomorrow.

Sunday late afternoon and evening families of the accused and the victim met at the Doig River Indian Band at the former home of the deceased. The purpose was to have a meal together and to give participants of tomorrow's circle time to develop some guidelines on how the process should go. Some emphasis was placed on preparation for facing the offender and for the circle to express their thoughts on what type of sentence should be given.

On Monday, organizers briefed members of the court party, including the Judge, on what to expect and what their role would be. There was discussion about the technical set-up, the seating arrangement, who could come in or leave, and about the possibility of pronouncing the actual sentence should there be a consensus of opinion.

[quotation]

"We wanted this because we wanted to deal with it in our own traditional way. She was the only one that we have. She was everything to us - our teacher, our storyteller. She was the centre of the whole family. We've always dealt with it the other way. They never face their victims or reality. This way the words come out of their mouths and not their lawyer's"

Lillian Apsassin Molly's daughter

[quotation]

"This process played a big part in our family's healing and opening up to each other and bringing our families together again, hopefully stronger."

Linda Sark Stoney's daughter

The actual circle assembled 46 persons and lasted six hours. Judge Millward acknowledged the risk he had taken in holding a circle. 'I was concerned because the process was new to me. It occurred to me that if the feelings of the persons present were going contrary to what I thought would be the right thing to do and contrary to the kind of sentences that have come before the courts in the last number of years, I would be in a quandary. That did not happen. I was greatly relieved.' In actual fact, the judge had brought to the circle an envelope containing examples of sentences handed people in similar cases. Without opening the envelope, he invited people on the third go-around in the circle to give their opinions regarding a sentence. Then, the judge opened the envelope and said that examples were similar to those handed down by judges in other cases.

The consensus of the circle was to sentence Stoney to two years in jail and three years probation, during which time he was ordered to address issues of anger and drinking. He would be off reserve for five years. Influencing the sentence had been the community wish that Stoney be in a place where he could be productive rather than being "in their face".

The offender was given a few moments with the family. Once most of the group had left, a number of the family members gathered around the offender for a final farewell greeting. Words are inadequate to describe the words of pain and forgiveness, the handshake, the tears and the hugs given the offender or his response asking for forgiveness for shooting the victim in a state of drunkenness, depression and anger. As the families left together for supper, they expressed peace and great relief from the pain and suffering they had experienced over the past eighteen months - a great burden had been lifted. The healing and reconciliation that occurred in these past five days was a spiritual experience."

Contact:

Martin Goerzen
Clinical Counsellor
Room 108, Execuplace
10142 - 101 Avenue
Fort St. John, B.C.
V1J 2B3
Tel. (604) 787-9622

Many other aboriginal communities mostly in western Canada and in the territories have either experimented with sentencing circles or have now made them a normal part of their community justice system. The case cited from Kwanlin Dun Community Justice is found in the preceding chapter featuring initiatives which we found best illustrate satisfying justice. Some non-native communities are interested in adapting sentencing circles for their own communities.

3. Family Group Conferencing

Introduction

In the past few years, family group conferencing has evolved from its New Zealand and specifically Maori roots to emerge more generally as a credible, reparative justice process for communities affected by crime. Primarily used to date for youth, family group conferences bring together in a circle the victim, offender and as many members of their family and supporters as possible, along with relevant professional or community workers. Conferences provide a forum to deal with people's unanswered questions, painful emotions, the issue of accountability and the question of restitution or reparation. We believe they offer great potential for satisfying justice.

The amount of diversion from courts appears to be significant in many jurisdictions using them; while conferences in a few countries can recommend a custodial sentence, in fact they seldom do. Their impact on rates of incarceration, modest for now, should be enhanced if and when increasingly serious offences are referred to this relatively new process. Generally speaking, satisfaction on the part of justice system professionals and the public is much higher compared to their experience in the courts.

Family group conferences are grounded in the following assumptions, according to David Moore, an Australian educator and pioneer of that country's conferencing model. (Moore, Facing the Consequences: Conferences and Juvenile Justice)

  • the definition of community is used sparingly, that is, it is confined to people with specific relationships to offenders and victims;
  • the offending behaviour and not the offender is rejected;
  • emotion is part of the process;
  • process allows reintegration into immediate community of interest (such as family) and broader community (such as the geographic community);
  • gives the conflict to those directly affected;
  • basic rules are those of social justice and community decency rather than of legal justice;
  • the conference is the most effective way to identify the causes of failure in the family, when applicable, and of community control, and to begin the complex process of restoring social bonds;
  • traditional justice system informal methods may achieve material restitution for victims but are not designed to repair the most significant symbolic and emotional damage;
  • coordinators act on behalf of the social justice system but will be umpires not players;
  • conference will encourage offenders to face consequences of behaviour;
  • conferences offer victims the opportunity to deal with their resentment and anger;
  • individual rights of offenders will continue to be protected.

" The first outburst often comes from the victim" says Judge Michael Brown, describing the dynamic of a family group conference. But after they've had a chance to vent some of their feelings of pain and anger, "it's amazing how generous they can be."

"Look, they may say, we don't want him to go to jail. But we do want our motor car back. And that leads to a realistic discussion about reparations."

Strengths

Family group conferencing builds on common restorative justice principles, offering the potential at least of genuine "satisfying justice". Because crime is understood more in the context of harm done to people rather than mere law-breaking, family conferences give the conflict back to those most directly affected, enhancing a shared responsibility for repairing that harm. Experts tend not to dominate the conference as they would in a courtroom; many community resources surface that were previously unknown and untapped. Some models of family conferences delve more into the family and community conditions underlying the crime, addressing the complex task of restoring social bonds.

The goal is reintegration rather than stigmatization and labelling of offenders. Through a trained co-ordinator, a process is followed with a determined order of speaking that is designed to enhance the reintegration. Participants in a conference will encourage the offender to face the consequences of one's behaviour, attempting to denounce and reject the behaviour instead of the person. The individual rights of an offender are intended to be a primary concern for conference organizers.

Victims are included as parties in their own right. They have the opportunity to deal with such emotions as resentment or anger. There is the likelihood of some material or symbolic restitution.

A positive "reintegrative" kind of shaming occurs in conferencing, particularly in the Australian police-based models as Carol LaPrairie explains: "It gives the community of people most affected an opportunity to seek resolution without making the offender an outcast. This is accomplished by harnessing informal community mechanisms to express both disapproval of the conduct of the offender and gestures of reacceptance into the community of law-abiding citizens. It is the second part of the ceremony, i.e. reacceptance based on John Braithwaite's theory of reintegrative shaming that distinguishes degradation ceremonies (used by the mainstream criminal justice system) from reintegrative ones."

Cautions

The early experience of family group conferences has illustrated the challenges facing this newer approach to justice. While victim participation and satisfaction is much higher than through the court process, it remains a central issue for vigilance. It is an ongoing priority in all these innovative justice processes to hold up the needs and rights of the victim. In any move to consensus and agreement in a conference, the healing needs of the victim should be given equal weight to those of the offender.

It is a challenge to select the most effective participants for a conference, those meaningful to victim and offender. When families are no longer influential in a young person's life, it is incumbent to identify and include someone who is now interested in that youth or once was, perhaps an aunt, favourite teacher or sports coach.

There is the danger down the road that family group conferences could create their own justice industry, just as much rule-bound and professional-dominated as mainstream justice.

In practical terms, early evaluation has been positive but also has revealed concerns about enforcement of diversionary conference agreements, due process rights, the potential for net-widening, turf wars among police, court and justice professionals and the limitation of conferences to address serious conditions leading to an offending behaviour such as unemployment, poverty and breakdown of family support networks. However, in the words of American criminal justice writer Russ Immarigeon, this preliminary evaluation indicates matters that require repair, not rejection.

Conclusion

Family group conferences have spread to several other countries, including a few pilot projects in Canada and considerably more juvenile jurisdictions in the United States. Remarkably, as the final few stories in this section illustrate, the approach of family group conferencing is also being used in prison and in the community, in some cases, even after someone did go to jail for a crime. It was clear that the jail sentence had ignored so much of the harm cause by the crime whereas these conferences were able to bring healing and closure. It is a poignant reminder that such processes make all the more sense at the front end of the justice and corrections systems; in cases where justice has been satisfying, and the offender is judged not to be a danger to the community, it begs the question of why custody at all.

Family Group Conferences, New Zealand

A Story

An offender, 16, has stolen and wrecked a car worth $1,700. Not a Rolls exactly, but to the poor single mum who owned it, essential and all but impossible to replace. Though young, the thief is no stranger to crime. Should the case go to court, odds are he'll go to jail.

All this comes out at the family group conference, where a grandparent agrees to pony up the $1,700. for a new car and the kid agrees to take a hard job at a packing plant to pay the money back.

Senior Police Constable Ross Stewart ticks off the winners.

"The victim's happy - she got the money she needed for a car. The police are happy - they solved a crime. The offender's happy - no conviction. His family? Well, they're annoyed. But they've taken an interest, and they have a stake in seeing him pay off the money."

"Justice has been served," says Stewart, a fit and strapping 40, and no bleeding heart. "It's a good system."

Doug Small
(Justice Down Under, National/The Canadian Bar Association,
November-December, 1995)

"The violated person is able to express her or his anger and resentment directly to the violator; the victim has begun the process of being back in control, of being empowered something she or he was robbed of by the offence. This is the first step in the healing process. The offender's reaction to this event is clearly visible to all present. The most frequent response, clearly demonstrated by demeanour, is one of shame and remorse. When the victim stops speaking there is almost always a most powerful silence, a stillness, while the eyes and thoughts of all those present are focused on the young person. Occasionally, a spontaneous verbal response will happen; more often, after a time, I will ask the young person how he feels about what has been said. This will elicit an indication of shame - even the most inarticulate will admit to feeling "stink". I may ask them whether there is anything they want to say to the victim. The majority will then proffer an apology. The victim then has the opportunity to accept the apology and often in doing so begins to display the first signs of forgiveness and compassion.

They will often now say what it is they want from the offender by way of reparation, not just in the financial sense, but what is needed to 'make things right' between them. In situations where the victim has suffered physical harm, or is left with a residue of fear from the offence, they will need reassurance that they are not going to be at risk from the offender in future, and they will need time to recover their confidence. If they wish, this can be addressed by further contact with the young person, or reports as to progress, or provision for a further meeting together when time has passed.

By focusing on the needs of victims for healing, their need to be restored to the feeling of being in control of their own lives, of being re-empowered, the young person and family when proposing a plan to deal with the matters can offer a creative, constructive solution. The best solution is that proposed by the young offender, through his family, having taken into account the requirements of the victim....

Marie Sullivan, Manager of youth services, Auckland
(quoted in Restorative Justice - Four Community Models.
Saskatoon Community Mediation Services' newsletter)

Conferencing - How it Started in New Zealand

In 1989, New Zealand passed the Children, Young Persons and their Families Act, dramatically changing the way in which the country handled young offenders.

Judge Heino Lilles of the Yukon Territorial Court in Canada summarizes the convergence of factors motivating the New Zealand reforms: " ... too many youth were charged and brought before the courts, often for offences which were not particularly serious. Inadequate resources were provided to the court to deal with the issues that came before it and the courts were ill suited to deal with social and family problems. The "justice" model was seen as ineffective in preventing delinquency. Others were concerned that there was a tendency to confuse welfare and justice issues, and that this resulted in interventions which were inappropriate and perhaps too soft. Victims' groups pointed out that victims were largely excluded from having any say in the court process and that very little attention was paid to reparation and restitution. In addition, the adversarial court proceedings were considered inappropriate to the culture of the indigenous Maori population who were over-represented in the criminal justice system. (Maori families make up 12 per cent of the country's 3.5 million population but 43 per cent of the known juvenile offender population)."

The new youth-crime law has helped stop this mindless merry-go-around. And it's given police like Stewart a new sense of purpose.

"In years to come," he predicts, "it will be seen as on a par with giving women the vote and the social legislation of the 1930s."

Doug Small, Justice Down Under

Meanwhile, the Social Welfare Department was studying victim-offender mediation schemes elsewhere, moving to a policy and justice approach which emphasized holding young people accountable for their crimes. Drawing on Maori and other Polynesian tradition, it was decided to apply these principles of restorative justice to the whole country. Supporting this direction was the Labour government's overall ideological push to privatize and cut back on social spending.

Its Objectives

The goals of the new legislation included:

  • diversion, including keeping young people out of courts and preventing stigmatization;
  • accountability, emphasizing restitution;
  • enhancing well-being and strengthening families;
  • "frugality" of time, meaning holding a conference within 21 days of the incident;
  • due process to protect rights;
  • family participation, to reintegrate youth back into the community;
  • victim involvement, in the decision-making and enabling their healing;
  • consensus decision-making;
  • cultural appropriateness, providing for different ways of resolving incidents depending on the culture of participants.

At another family group conference, called to deal with a boy who stole several cars, the following dramatic exchange took place as an uncle of the boy confronted him.

"Stealing cars. You've got no brains, boy.... But I've got respect for you. I've got a soft spot for you. I've been to see you play football. I went because I care about you. You're a brilliant footballer, boy. That shows you have the ability to knuckle down and apply yourself to something more sensible than stealing cars.... We're not giving up on you."

Its Results

According to Joe Hornick of the University of Calgary, research indicates that conferences have significantly cut the flow through the court system and have led to a reduction by half in the use of custody. Conferencing must be understood in the broader context of that country's youth justice system where 71 per cent of all offenders are either formally cautioned or informally warned, with the remaining cases going through the formal courts or a family group conference. Only 20 per cent of all young offender cases go to youth court, compared to a 80 per cent figure before the law changed in 1989. Even if a case goes to court, after a guilty finding a conference is called to make recommendations.

How Does it Work?

A trained social worker usually serves as conference coordinator, carrying out significant pre-conference work with both victim and offender and their families. New Zealand family conferences delve far deeper into the underlying social conditions related to the crime and rely heavily on the youth's extended family.

The conference can only be convened if the youth admits to the offence. If there is a denial in a conference, an adjournment is called for discussions between the co-ordinator and youth, with the option that continued denial will have the case referred back to the courts. As a conference is empowered by law, a decision reached by consensus is binding.

There are three stages to a family group conference. Following introductions and greetings, which sometimes include an introductory prayer, the police describe the offence. It is not long into this first phase before the young offender in the presence of his family and supporters is confronted directly by the people his actions have affected. This early storytelling gets at the emotions, the unanswered questions, the needs of the victim and the facts related to the case.

A second phase involves a private deliberation by the offender's own supporters to propose a plan. Families seem to address personal and private matters more freely in this phase.

Finally, the conference reconvenes with the professionals and victim and supporters to see if all are agreed on the recommendations. A Youth Justice social worker monitors the plan: if it is completed, charges are usually withdrawn; if not, a youth court judge will make a determination.

Contact:

Marie Sullivan
Youth Justice
New Zealand Children and Young Person Services
Private Bag 78-901 Grey Lynn
Auckland, New Zealand
Tel. (011) 649-376-1164
Fax (011) 649-376-5770

Family Group Conferences, Wagga Wagga, Australia

A Story

A 15-year-old male and a 16-year-old female broke into the flat of an elderly woman who lived alone. They stole a variety of property including a television, jewelry and food (value around $5,000). Both offenders were living at a nearby caravan park and had watched the victim leave her home. The victim's daughter suspected the offenders as the flat had previously been broken into.

Police became involved, interviewed the offenders and located most of the property. Police also arrested another adult offender, who was charged and placed before the court. This offender was sent to prison because of his criminal history. The issue of a conference or court hearing was discussed at length by police. As the adult offender had been sent to court and imprisoned, police initially felt that the other offenders should also be charged because of this and the seriousness of the matter. However, the case was referred for a conference.

The cautioning conference involved the following people: the male offender, his mother, brother and sister; the female offender, her mother, sister, boyfriend and two other friends; the victim, her daughter and grand-daughter.

Both offenders talked about the circumstances and were confronted by the elderly victim who disclosed that she had been broken into on two prior occasions. The victim talked about living in fear for about two months. She was distressed about the loss of a wooden box her brother gave her when she was fourteen. The victim's daughter spoke about her concern for her mother over the past few months.

The results of front line diversion programs like conferencing can be dramatic. While Canada's average rate of youth court cases per 1000 is 53.1, the court appearance rates in the four most populous states of Australia vary between 14.8 (Victoria) and 23.7 (New South Wales).

The mother of the female offender noted her daughter had not lived at home for about two years. There was considerable emotion between the offender, her sister and mother over many issues. The conference participants were moved by the anguish shown by the elderly victim. The discussion on the $400 compensation resulted in an arrangement whereby the two offenders would make repayments each fortnight into a bank account nominated by the victim's daughter. Both offenders agreed to undertake 20 hours community work. The female offender was to work with her mother with a local scout group (her mother was doing community work there as a result of a court appearance for social welfare fraud). The male offender was to work at the St. Vincent de Paul Society.

As the elderly victim was leaving, she summoned the sergeant saying, "Thank you, I now feel safe".

The outcomes of the conference were: offenders apologized to the victims; they agreed to pay compensation; they agreed to undertake 20 hours community work; the victim stated she was no longer fearful; the victim's daughter felt relieved that her mother's situation would now return to some normality; the conference provided a forum for the female offender and her mother to deal with a number of outstanding issues.

It would not have been possible to address the victim's concerns if this matter had been sent to court. The young offenders would not have been confronted in court about many of the issues dealt with in the conference. The conference brought together members of two offenders' families with a history of difficulty and enabled them to deal with issues in a positive and constructive manner.

Conferencing - How it Got Started in Australia

Among others, Police Sgt. Terry O'Connell wanted a different, more satisfying justice intervention for youth in conflict with the law. He knew well the typical court room scene where the young person sat with his or her legal advocate, the only dialogue occurring between the judge, crown and defence lawyers. The average proceeding in most cases was 15 minutes and the only time the young person was involved is when the judge asked him or her to stand up in order to be told that they had broken the law. "In what way has this intervention contributed to the young person not re-offending?" he wondered. "How can young persons be expected to accept responsibility for their behaviour when generally they have no idea of consequences, apart from understanding that they are in court because of what they did?"

Its Results

There are statistical data which measure in a limited way some of the more tangible conference outcomes. There has been a nearly 50 per cent reduction in the number of young offenders before the court. The recidivism rate for those experiencing a conference in Wagga Wagga is less than five per cent. Seventy to eighty-five per cent of young people who are cautioned do not come to the attention of the police a second time. In excess of ninety per cent of all conference agreements are completed. Offender, victim and police satisfaction is high and there is considerable reduction in workload for juvenile justice workers.

The Australian pioneers of conferencing list other benefits which cannot be measured. They include: the recognition by young offenders that there are people who are concerned about their well-being; the empowerment of parents and others with an opportunity of accepting collective responsibility and accountability; and victims are provided with a positive role in assisting young offenders and their families to deal with the consequences of crime.

How Does it Work?

Conferences are viewed as a more formal and far more effective form of cautioning than a mere police warning. The cautioning conference model involves police in a more central role than New Zealand. They determine whether a particular offender will receive a warning, be involved in a conference or proceed to court. These decisions are made by a review board of senior police. This arrangement was an important step towards securing police support of the program. Confer-ences are coordinated by police and held at several locations, including police stations.

The Australians actually have several different adaptations of family group conferencing operating in at least five states, in some areas using conferencing for adults as well. Generally, their model is geared more to the resolution of a specific event, although there is the assumption that broader community interests may also be better served. Unlike New Zealand, there is no private phase to the conference for the offender's supporters to gather to recommend a plan.

The heart of a conference is the stories of participants. The offender gives his own story first, at times assisted by helpful questions from the coordinator. The victim follows. The coordinator asks the first set of questions in response to each of the stories and then other conference participants interject. Questions to the offender are intended to get a recognition and acknowledgement of the effects of the behaviour, and to the victim, to establish the harm done.

Contact:

Sgt. Terry O'Connell
Police Association of New South Wales
Level 4, 154 Elizabeth Street
Sydney, N.S.W. 2000
Tel. (02) 283-5567
Fax (02) 283-5589

Family Group Conferences - Aboriginal Youth Regina, Saskatchewan

Kwêskohtê, a Cree term meaning approximately "walk a straight path", offers aboriginal youth in Regina a pre-charge option through a family conference approach, diverting youth for "minor types of serious offences". This pilot program of the Young Offenders Diversion project is particularly innovative in its decision to handle more serious offences than tend to get diverted. Charges for prostitution or soliciting, theft over, break and enter, and common assault are being referred to family conferences.

Government and private studies cite the over-involvement of aboriginal youth in the criminal justice system. Although aboriginal children and youth account for only 15 to 20 per cent of the population in the province, 72 per cent of youth in custody are aboriginal, 45 per cent of the community youth caseload is aboriginal and only 35 per cent of aboriginal youth receive current alternative measures. If the current rate of demand continues, Saskatchewan Social Services estimates that an additional 105 youth custody beds will be needed by 1999. That is the equivalent of one large new facility costing $8 million.

Kwêskohtê wanted a different approach than custody. Co-ordinators assisted by aboriginal elders facilitate reconciliation and reparation processes. Up to 15 youth can be handled by Kwêskohtê, a central condition being that the youth is willing to take responsibility for his or offence.

The justice conference is a tool of empowerment, first for youth and their families to take responsibility for his or her actions. It empowers victims to move forward from incidents that have set them back. Victims can express what they have experienced as a result of the offence and recommend what they feel would be appropriate and suitable redress for their circumstances arising from the offence. Options for victims include a personal or written apology, personal service to the victim or community service on behalf of the victim, compensation, replacement or restitution or a charitable donation. It also empowers the community to be a part of justice processes which reintegrate youth as contributing members of society.

The youths responsible for the crime agree to counselling and cultural activities with elders, structured activity within the home, school or community environment. They agree to participate in programs and services to address their needs. They complete the agreement in order to avoid charges and court appearances.

Contact:

Kwêskohtê
Regina Friendship Centre Corporation
1440 Scarth Street
Regina, Saskatchewan
S4R 2E9
Tel. (306)525-5459
Fax (306) 525-3005

Family Group Conferences, United States

The Australian innovators of police-based family group conferencing have already trained hundreds of U.S. and Canadian police, social services workers and educators in family group conferencing during four training sessions in North America. Initially, these conferences tend to be recommended for more minor offences. As police, Crown and public confidence in conferencing increases, there is every reason to believe officials will divert more serious offences which would have resulted in incarceration. As an example, we cite one Vermont family group conference. We also give additional addresses, first for Real Justice, a program dedicated to bringing Australian family group conferencing to North America, and also for a Minnesota police officer who has done more than 23 conferences for incidents ranging from shoplifting to racial bias crimes.

Assault in a Vermont High School

A 17-year-old student physically assaulted another student in the hallway outside the guidance office of our high school. The investigation revealed that the offender was upset about a non-school-related matter. He had walked out of a classroom and apparently happened upon the victim, a fifteen-year-old boy, in the hallway outside the guidance office. The boys did not know each other. The older boy simply assaulted the younger one because he was in his way. The younger boy did not require medical attention but was clearly roughed up and shaken by what had happened. He was knocked to the ground and did receive some bruises. More significant was the fear this boy harboured; a fear that was shared by others, including his parents. This incident was witnessed by the secretary in the guidance office. She reported the attack. The secretary was also frightened by the incident. Her fear was heightened even more when she learned that the attack was unprovoked. The question for her own safety and that of everyone else in the school added to the level of anxiety.

The consequence for the offender was immediate suspension from school with a recommendation for expulsion. In addition, the family of the victim was preparing to press criminal charges.

The Family Group Conference that was organized involved the following individuals: the victim and his parents; the offender; his foster mother; social worker; a school counsellor; a teacher from the high school; and the guidance office secretary.

The significant outcome of this conference was in allowing the offender to face the people who had been affected by his actions. It allowed each of the victims and their supporters to tell the offender how they felt. The offender apologized and was given the opportunity to convey to every one present that he recognized his need for professional help. He understood that what he had done was wrong and that he would not be allowed to return. The victims expressed their satisfaction with this process because it allowed them to participate in determining consequences that were meaningful to everyone. Most importantly, the boy who had been attacked, his parents, the guidance secretary and others left the conference with greater confidence that their school is a safe place.

As a result of this conference, no criminal charges were laid. The boy was suspended rather than expelled and there was a tutoring program put in place.

Contact:

Rick Ebel
Assistant Principal
South Burlington High School
550 Dorset Street
South Burlington, Vermont 05403
Tel. (802) 658-9001
Fax (802) 658-9029

REAL JUSTICE
P.O. Box 500
Pipersville, Pa. 18947
Tel. (215) 340-9922
Fax (215) 348-1563

Al Campbell
Anoka Police Department
2015 Ist Ave. No.,
Anoka, Minnesota 55303
Tel. (612) 421-6632
Fax (612) 422-2092

Family Group Decision - Making Project, Newfoundland and Labrador

Nain, an Inuit community in Labrador, and Port au Port Peninsula and St. John's regions in Newfoundland, tried a non-judicial version of family group conferencing as part of an innovative family violence pilot project.

There was no direct impact on incarceration in the Family Group Decision-Making Project because those who abused still went to court and possibly jail, depending on their sentence. However, there was a judge in the Nain circuit who became interested in the family group decision-making approach and found it relevant for sentencing. In some cases, once safety concerns and family wishes were addressed, escorted prisoners attended the family group conference. The conferences were able to deal with much of the harm and needs not addressed in a courtroom. The project's final report noted:

"It's hard to maintain the denial when confronted with clear evidence about the abuse and when your whole family is sitting in a circle listening to what you did.... During the conferences, most people who had committed abuse did not or could not deny it....With their entire family and closest supports present, the offenders could not play one group off against another. Moreover, it should not be assumed that abusers do not want help; a case in point is one man who not only admitted to the abuse, but the referral to the project was actually initiated by him."

"It's hard to maintain the denial when confronted with clear evidence about the abuse and when your whole family is sitting in a circle listening to what you did.... During the conferences, most people who had committed abuse did not or could not deny it....With their entire family and closest supports present, the offenders could not play one group off against another. Moreover, it should not be assumed that abusers do not want help; a case in point is one man who not only admitted to the abuse, but the referral to the project was actually initiated by him."

Family Group Decision - Making Project Program Report

Any family referred to the project was brought together with their extended family and other significant social supports to work out a plan to stop the abuse or neglect.... "The aim of the Family Group Decision-Making Project was to reduce violence by stitching 'old' partners together to determine solutions, but now these 'old' partners - family, kin, friends, community, and protective services - were to assume new roles, new configurations on working together."

Contact:

Gale Burford and Joan Pennell
Memorial University of Newfoundland
School of Social Work
St. John's, Newfoundland
A1C 5S7
Tel. (709) 737-8165
Fax (709) 737-2408

4. Community Sentencing Panels and Youth Justice Committees

Introduction

There are quite a number of "community sentencing" initiatives happening in our country that have considerable potential for a more "satisfying justice". They take many forms, including Community or Youth Justice Committees, accountability committees, corrections committees, sentencing panels etc. Whatever form they take, most involve citizen volunteers or elders who often rely on such restorative measures as restitution, reparation, mediation and victim involvement. They can also deal with the social conditions contributing to the crime. These community justice initiatives are operating in both aboriginal and non-aboriginal communities, serving adults as well as youth depending on their mandate.

A Manitoba report on the development of youth justice committees in that province summarizes the evolution and potential for these various initiatives. "Justice committees typically evolve slowly, gaining momentum with experience and time. A common beginning involves one or sometimes a few individuals recognizing that the capacity to solve problems in the community exists within the community itself..... People get involved. They take on responsibilities. Issues get examined and thought through with the benefit of local knowledge. Things happen in ways that surpass those of the traditional Justice System. Behaviours change. Reconciliation with the community occurs. Community sense of security is enhanced. Clearly, Justice Committees are a method of enabling the people of a community to become engaged in the belief that they have something to contribute. Arguably, that is the foundation of individual, family and community health." (Roger Bates, Manitoba Justice Committees)

Teslin Tribal Justice Project - Sentencing Panel, Yukon

A Story

In 1991, a 42-year-old man pleaded guilty to the sexual assault of his 13-year-old daughter, indecent assault of another daughter and having sexual intercourse with a 13-year-old foster child. He would have expected to receive a prison sentence. After this plea, the man took treatment for his alcohol problems, joined educational sessions on sexual abuse as far away as Winnipeg, as well as attending a weekly "teaching circle" run by the community. When the time came for sentencing, the Crown was the only party that requested punishment, while the sentencing panel recommended a community disposition. Judge Heino Lilles was sitting at Circuit Court at this time. The man's wife was a victim of sexual abuse and initially felt anger, betrayal and guilt at her husband's behaviour but took a different position at the time of sentencing. According to Judge Lilles:

"Mrs. P. gave evidence of how the disclosure affected her, but also her observations of the changes in her husband during the past year. They have talked openly about the problem, including the need for both of them to get alcohol treatment. They went to treatment together and both of them, along with the eldest daughter, attend the 'healing circle' on a weekly basis. She described the positive changes in their relationship since the disclosure, including open communication, honesty and truth in their relationship and the courage to stand up and admit that he is an offender. Both mother and daughter support the clan recommendation for a community disposition, feeling that 'jail will stop the healing that has been going on', and that the father is an 'integral part of the healing process for herself'."

The community itself, and the sentencing panel also favoured a community disposition, as reported by Judge Lilles:

"Chief Keenan emphasized that the Tlingit attitude towards the sexual abuse of children is that it is not condoned or tolerated. He stated that there is no room in their society for this kind of activity. He testified that the Tlingit focus is not on the removal of the offender from the community but on the healing of both victims and wrongdoer within the community... The offender, victims and the rest of the family must be brought together in the 'healing circle' in order to 'break the cycle of abuse' which would otherwise tend to repeat itself from one generation to another."

After learning of the community's approach to this kind of offence, Judge Lilles said in his judgment:

"It is of interest that it has been only relatively recently that professional psychologists and social workers have begun to fully appreciate the devastating impact of this cycle of abuse. Tlingit custom and tradition have apparently recognized it for centuries. Moreover, as our criminal law focuses primarily on the offender, it is unable to effectively deal with victims, family or the community of the offender.... They have asked for a culturally relevant disposition which would be supportive of family healing, which would denounce abuse of children within the community, and which would encourage other victims and offenders to come forward for treatment and rehabilitation." (Please refer to commentary on circle sentencing on page 89 for relevant cautions about this process vis-à-vis women who risk further victimization in these community-based justice processes unless adequate safeguards are put in place.)

When passing sentence, Judge Lilles agreed with the panel's recommendations and commented:

"In this case I have heard evidence about the humiliation which accompanies disclosure of an offence like this in a community the size of Teslin. 'First, one must deal with the shock and then the dismay on your neighbours' faces. One must live with the daily humiliation, and at the same time seek forgiveness not just from the victims, but from the community as a whole.' For, in a native culture, a real harm has been done to everyone. A community disposition continues that humiliation, at least until full forgiveness has been achieved. A jail sentence removes the offender from this daily accountability, may not do anything towards rehabilitation, and for many will actually be an easier disposition than staying in the community."

Project Description

The Teslin Justice Project began in 1991 in the community of Teslin located in the southern area of the Yukon along the Alaska highway. The population is primarily aboriginal with the Teslin Tlingit Band having approximately 700 members. An Elder from each of the five Tlingit bands sits with the Territorial Court Judge and advises on dispositions that directly affect members of the community. In addition to participating in the court proceedings, the Elders play an important role in developing community based justice and alternative dispositions for the court to use. According to one community leader, "our tribal justice system allows our Elders, who know the offender well, to delve more deeply into the underlying issues of the offender's behavioral problems and then reflect their concerns in the sentence imposed." This project allows people to re-identify with their traditional ways and helps to develop a more effective justice system that is sensitive to the needs and aspirations of their community.

Through this project, the Court is seen as being a part of a community process and the offender is held accountable before the Court and the community as a whole. A Band Council member explains that "out of it, the offender gets the feeling that he's part of the community and is responsible and has an obligation to the community."

The Teslin tribal justice project is available to all residents in the community and does not exclude any kind of offence. The Elders know the offender well and are able to discuss with the members of their clan what types of dispositions would be recommended to the court; as a result, most everyone in the community is aware of the offender's behaviour in the community. After hearing the final comments of the Judge, the Elders retire to discuss their recommendations, which must be arrived at by consensus. This process allows the Elders to reassume their traditional role of dispute resolution in the community and demonstrate the wisdom and guidance they possess to the community, thereby helping to rebuild the respect for traditional ways.

Dispositions recommended by the Clan leaders are intended to reflect the concerns and cultural values of the community and be rehabilitative in nature, generally being a probation order with recommended conditions attached. This reflects the aboriginal view of a wrongdoing being like an illness in the community that must be healed in the community as part of a holistic healing process. According to one Band Council member, "there is no such thing as a dispensable Tlingit person" and the potential value of every person, including offenders, is recognized.

The Teslin Tribal Justice Project also includes the Healing Circle, a community initiative developed to bring residents together on a voluntary basis to discuss their problems. Victims, offenders their families and other community members participate by sitting in a circle and discussing openly their concerns and feelings, in a way similar to group therapy. These circles operate on an informal basis with the only resources being the people themselves, and tend to be spontaneous events advertised by word of mouth.

Contact:

Georgina Sydney
Box 133
Teslin, Yukon
Y0A 1B0
Tel. (403) 390-2532
Fax (403) 390-2204

Wabasca Justice Committee, Alberta

A Story

The hearing started with a prayer and was carried out in Cree, the first language of all present, except the police officer who read out a police report on the offence. The offence was drinking and driving related and the officer remained for the rest of the hearing. Information from probation services was read out by the court worker, who also took notes and provided various kinds of legal information. The sentencing panel members, who knew the offender and his family quite well, commented on efforts of other family members to remain sober, the important financial role the young man played in the family, his past misbehaviours and told him that his driving frightened many community members. His respect for the sentencing panel members was evident throughout the hearing. He was asked various questions and eventually asked how he felt about the recommended sentence. He seemed very relieved and said he agreed with it. At the end of the hearing, each panel member gave the offender a hug. It was easy to see that the young man was moved.

Contact:

Native Counselling Services of Alberta
800 Highfield Place
10010 106 St.
Edmonton, Alberta
T5J 3L8
Tel. (403) 423-2141
Fax (403) 424-1173

Slave Lake Sentencing Panel, Alberta

A Story

The young offender was non-native and the proceedings were in English. There were three sentencing panel members, one of whom was Native. The other two were non-Native. Each member introduced themselves to the young offender who was charged with a property offence and a personal offence. Information was presented by an RCMP officer (who promptly left), and received by fax from probation services (and read by the court worker). The young offender was asked his version of the event and questioned about certain things in the police report. His father was then called in and asked about the boy's upbringing. Both the young offender and his father got severe tongue-lashings from one of the sentencing panel members. After discussion with the boy and his father, consensus was reached. The young offender was sentenced to make restitution, to apologize to the victim, and to attend school regularly or to find a job. His father thanked the sentencing panel and said his boy would be okay, thanks to their help.

Youth Justice Committees

Youth Justice Committees have been in operation in Manitoba since 1975 and in Alberta since 1990 and are also being developed in other provinces. For example, they are responsible for the alternative measures program in Newfoundland.

They are a reminder that many communities still take responsibility for straightening out their own members who have problems. Manitoba officials report they have been effective in reconnecting offenders with family, school, peers or the community itself. It is community members who can keep an eye on others during everyday routine, help them with their problems and put pressure on wrong-doers to change their behaviour. Many of these communities believe jail is not the answer for these youth in conflict with the law. They would learn further criminal behaviour there. The community would rather keep the youth at home and in their midst, believing they are less inclined to commit crimes if they have to answer to members of their own community.

Youth Justice Committees are a group of anywhere from eight to fifteen volunteers who meet together to look at social and justice issues within the community. Typically, committee members include teachers, police, parents, youth, seniors, other professionals, business people, trades people, members of various cultural or ethnic groups, and other interested citizens. For the most part, they form around a particular geographic community, e.g. reserves, small rural communities or a city district.

Youth Justice Committees are mandated by the Young Offenders Act at s. 69 which states that they may assist "in any aspect of the administration of this Act or in any programs or services for young offenders". The two most common models for these committees focus on either sentencing or pre-court diversion. As a sentencing panel, the committee interviews those relevant to the offender and the incident and then makes a recommendation to the court judge. One disadvantage is that the youth still gets a criminal record. The pre-court diversion option, on the other hand, bypasses the judge and avoids a record. Youth Justice Committees may also get involved in monitoring the progress of offenders and undertaking community education in crime prevention.

Contact:

Roger Bates
Council Coordinator
Provincial Council on Youth Justice
Manitoba Justice
8th Floor, 405 Broadway
Winnipeg, Manitoba
Tel. (204) 945-0973
Fax (204) 945-5537

Wanda Penney
Division of Youth Corrections
Department of Social Services
P.O. Box 8700
St. John's, Newfoundland
A1B 4J6
Tel. (709) 729-2480
Fax (709) 729-0583

Elders' Justice Committee Fort Resolution, Northwest Territory

The community of Fort Resolution under the direction of Sub-Chief Danny Beaulieu formed a six member Elders' Justice Committee in January, 1995. The committee attends all Justice of the Peace sittings in the community and advises the court. Beaulieu is a local Justice of the Peace as well. This is working out quite well and they hope to form a Youth Justice Committee in the future.

Contact:

Danny Beaulieu
P.O. Box 1899
Fort Resolution, NT
X0E 0M0
Tel. (403) 394-4335

Russell Heights Community Justice Committee Ottawa, Ontario

An Ottawa neighbourhood has formed a community justice committee to promote more meaningful, effective, speedier and community-based responses to crime, starting with youth in conflict with the law. The Russell Heights Community Justice Committee is founded on the principles of restoration, not retribution. Still in its initial implementation stage, the committee hopes to receive referrals from police or Crown and is open eventually to dealing with adults as well. The committee consists of seven members, including three residents, one from South Ottawa Community Legal Services, one from South-East Ottawa Centre for a Healthy Community, a Crown Attorney representative and a Probation Services (Youth) official.

The committee wants to involve in its sentencing process people with some degree of connection to an offender, so that collectively they can make a decision recommending the most suitable expression of justice for the person. Depending on the recommended sentence, this committee would then also be involved in supervising the sentence and supporting the offender.

The Russell Heights community is a subsidized, low-income family housing project for some 700 residents, including 500 young persons under the age of 21. Without exception, all residents are either receiving social assistance or are working poor. The majority of families are sole-parent households usually headed by women, with over half the residents being new Canadians who have immigrated within the past ten years.

Contact:

Douglas Henderson
South-East Ottawa Centre for a Healthy Community
225 - 1743 St. Laurent Blvd.
Ottawa, Ontario
K1G 3V4
Tel. (613) 521-9100
Fax (613) 521-2354