Sentencing Circles

What are Sentencing Circles?

Benjamin Ralston summarizes the role that sentencing and healing circles play in restorative and alternative justice measures: 

"Sentencing and healing circles play both procedural and substantive roles in sentencing. On a procedural level, they can provide insight into the circumstances underlying the offence, including individual, family, and community dynamics. They can indicate whether someone has support from family, community members, or the victim moving forward. They can bridge cultural and linguistic barriers. They can contribute to crime prevention by facilitating more cooperation between professionals and Indigenous community members.

Yet in the words of Chief Justice Bayda of the Saskatchewan Court of Appeal (as he then was), ‘[a] sentencing circle is much more than a fact-finding exercise with an [A]boriginal twist.’ A circle ‘permits not only a release of information but a purging of feelings, a paving of the way for new growth, and a reconciliation between the offender and those he or she has hurt.' The notion of healing in this context also extends to the fact that the community to which the offender has accounted is assuming 'an authority over and responsibility for the offender.’

Framing these substantive outcomes in the language of the Criminal Code, an Indigenous person’s participation, apologies, and expressions of remorse within a circle may indicate if the sentencing objectives of specific deterrence, rehabilitation, taking responsibility, and acknowledgement of harm are being achieved. Participation in the circle may indicate they are addressing the issues underlying their offending, such as addictions, trauma, and cultural disconnection, with clear relevance to rehabilitation. It can also support victim/offender reconciliation and community reintegration.”[1]

Establishing Jurisprudence: Sentencing Circles in Saskatchewan

 

Teillet, Métis Law in Canada, 7-2 - 7-3. 

“The principles with respect to the use of sentencing circles was set out by the Saskatchewan Court of Appeal in Morin. Ivan Joseph Morin, [A Métis man from Green Lake], was convicted of committing robbery with violence contrary to s. 343(b) and s. 344 of the Criminal Code. Mr. Morin applied for a sentencing circle to consider the sentence he ought to receive. The judge granted the application. A sentencing circle was convened [with represenatives from the Saskatoon Métis Local]. It deliberated, arrived at a consensus (excluding Crown counsel) and made a list of recommendations. Apart from three small variations the judge accepted the recommendations.”[2]

“The first sentencing circle was held in Sandy Bay, Saskatchewan in July of 1992 [sentencing the case of R v Moses[3] ]. Since then many sentencing circles have been held in Northern Saskatchewan and out of this experience there have emerged seven guidelines that are applied in deciding if a case for sentencing should go to a circle.

The criteria are as follows:

 (1) The accused must agree to be referred to the sentencing circle.

(2) The accused must have deep roots in the community in which the circle is held and from which the participants are drawn.

(3) That there are elders or respected non-political community leaders willing to participate.

(4) The victim is willing to participate and has been subjected to no coercion or pressure in so agreeing.

(5) The court should try to determine beforehand, as best it can, if the victim is subject to battered spouse syndrome. If she is, then she should have counseling made available to her and be accompanied by a support team in the circle.

(6) Disputed facts have been resolved in advance.

(7) The case is one in which a court would be willing to take a calculated risk and depart from the usual range of sentencing.”[4]

 

The Myth of Swan: The Case of Regina v. Taylor

 

Mills, Dawn P. "The Myth of Swan: The Case of Regina v. Taylor." Canadian Journal of Native Studies, vol. 18, no. 2, 1998. pp. 255-270.

The sentencing circle, a traditional way of issuing sanctions in First Nations communities, is endorsed by the Judiciary in many parts of Canada. This paper uses the Dene myth of Swan to discuss and illustrate the principles of sentencing circles in Dene and Metis communities in light of several current legal cases.

This resource analyzes numerous examples of Saskatchewan case law where sentencing circles were used in conjuction with communities (rural and urban), and the restorative sanctions that were outlined in the sentencing decision. The summary of R v. Taylor provides a well-constructed and detailed example how Indigenous Legal Traditions and community-responsive justice formed in consultation with an Indigenous community, can be realized in a Saskatchewan context. Innovative solutions that explore alternative/restorative sentences and sanctions  are integral to the well-being and restoration of trust between an offender, victim, and community.

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Myth of Swan_SENTENCING CIRCLES.pdf805.17 KB
Footnotes

 

[1] Ralston, Benjamin. The Gladue Principles: A Guide to the Jurisprudence. Saskatoon: BC First Nations Justice Council and USASK Indigenous Law Centre, 2021. 211-212. [references omitted]

[2] Teillet, Jean. Métis Law in Canada. Vancouver, B.C.: Pape Salter Teillet, 2005. 7-2. [references omitted]

[3] [1992] 3 C.N.L.R. 116Y. Terr. Ct.

[4] Teillet, Jean. Métis Law in Canada. Vancouver, B.C.: Pape Salter Teillet, 2005. 7-3. [references omitted]