Aboriginal sentencing and mediation initiatives : the sentencing circle and other community participation models in six aboriginal communities
Green, Ross Gordon,
Anglo-Canadian law has typically provided little opportunity for direct participation by victims and community members. Short of the creation of independent Aboriginal justice systems, such participation is most readily accommodated in sentencing and mediation. The imposition of an alien justice system on Canadian Aboriginal communities led to systemic inequities and its authority has been strongly resisted. Through a conjoint revision of sentencing practices by members of the judiciary and local community members, a variety of innovative sentencing practices have been implemented. This study analyzed community sentencing and mediation in Canadian Aboriginal communities and investigated six initiatives in central and northern Manitoba and Saskatchewan. Case law and secondary materials relating to Aboriginal justice and sentencing provided a context for these case studies. A theoretical framework based on legal pluralism and post-colonialism facilitated interpretation of study data. Sixty-six interviews were conducted with fifty-one respondents who were members of the communities studied or were lawyers, police, probation officers and judges involved with these communities. Four community participation models were identified: circle sentencing, the sentence advisory committee, the Elders' or community sentencing panel and the local mediation committee... These approaches have developed almost exclusively in rural Aboriginal communities. A combination of available local systems of social control and the communal nature of Aboriginal society has assisted in the development of these initiatives. Despite such concerns as the potential for local political interference and the role and protection of victims, the evolution of community sentencing and mediation appears to have had an empowering effect on Aboriginal communities. The continued development of such initiatives will depend upon many factors including local community and judicial suppport (both local and appellate) and accessability of treatment facilities.