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Aboriginal justice and Canadian criminal justice system
The goals of aboriginal justice are to heal the offender and the victim, and restore harmony to the community. Aboriginal justice centers on ways of justice that are accustomed to and brings healing to the communities. Aboriginal justice starts within an understanding of the many relationships within the created world. It, therefore, begins with the Creator. The first, sustaining aspect of aboriginal justice, then, is having the right relationship with the Creator and all of creation. Williams (2002) describes aboriginal justice as an ecological and spiritual vision of justice, which is lived in the traditions, stories and ceremonies of various, distinct groups. Spirituality is one of the primary pillars of this healing justice. Aboriginal justice is not based on equality but on difference and developing distinct identity.
Aboriginal justice is founded on relationships with the land and with all creations and thus, leads to a concern for the healing of all, including those who have harmed others - offenders. Aboriginal justice is perceived as a healing and does not accept the paradigm of winners and losers. It is a communal sense of justice, which does not shy away from holding persons responsible for harms. It sees such acts as an opportunity to strengthen the person, the community and the nation through a healing process. When an Aboriginal community gathers to do justice, it seeks holistic ways of responding to harm in its entirety (Williams, 2002). For Aborigines, a key part of the healing process is speaking the truth. This means looking deeply at a situation to determine the network of forces, which contribute to harming behavior. Such a holistic approach is not limited to the one episode of harm. It seeks to tell the truth of the root causes of harming while at the same time nurturing the key dynamics of integration and balance (Thornton and Todd, 2001). Aboriginal justice is about making families and communities strong again. Therefore, this justice is about being part of a people and seeking self-determination as a people.
Aboriginal justice tends to use heart-thinking more than head-thinking (Dupius, 2001) emotions are a fundamental part of restorative justice. The values of justice include respect, dealing with each other in good ways, strengthening families and communities and returning to traditional teachings. These values are learned and taught by experiencing them and practicing them. Hence, the methods of justice demonstrate the virtues of justice: respect, love, engaging family and community, changing one's relationship with land, elders and creator and coming together with the community. The goals and paradigms of Aboriginal justice contrast those of the criminal justice system. Aboriginal justice goal is more about repairing the harm than punishing offenders. It challenges the state-centric models of justice by rooting for a more central role for victims, offenders and sometimes communities. However, there are also ways in which Aboriginal justice mirrors the criminal justice process. Thornton and Todd (2001) explain that both have a case orientation, which begins with someone breaking the law or harming someone else. In Canadian criminal justice system, justice begins with laws, rules and the system, and order is state-forced. On the other hand, in Aboriginal justice, it begins with the creator, the natural and the elders. Natural orders already exists which demonstrates how we are all related.
The goals of the two systems differ in many other ways, making their goals incompatible. According to McCaslin (2005), in Aboriginal justice system, ways of justice are rooted in local knowledge, language, and experience with the spirituality being essential to justice. It has a holistic, cyclical way of thinking and equality is seen as honoring distinct identity. In this paradigm, all need healing, all need each other, and a communal approach is embraced - co-responsibility in guilt and also in nation building and personal healing. The Canadian criminal justice system goal is to establish justice as an universal system or process. Justice is separated from the spiritual, it is a linear, time-bounded way of thinking, and equality is deemed sameness. Unlike the Aboriginal justice system, it is centered on win-lose paradigm in disputes and takes an individualistic conception of guilt.
Several other goals and aspects of Aboriginal and Canadian criminal justice systems are incompatible. Williams (2002) writes that the Canadian criminal justice system is centered on a colonializing and assimilative goal of making everyone good citizen. The current Canadian criminal justice system reveals the Eurocentric elite's dogmatism in human infirmities and vindicates a model of social control by violence. The majority rules minority and authority, rank and obedience, are highly valued. Justice responds to rules, which are the mechanism of social control. Criminal justice is reliant on experts and states responding for the community thus making it incident-focused particularly on symptoms. In this system, a person is individually responsible, and the offender is seen to require punishment. Proving case is by arguing facts and sometimes use of force, intimidation and guilt is employed as methods of justice. Criminal justice aims at identifying the guilty; it is a discreet act and is all about punishment.
Conversely, Thornton and Todd (2001) note that the Aboriginal justice system takes a holistic approach to responding harms in their entirety. Healing is its main goal and it is likened to being a good family member and seeking self-determination. It seeks consensus between the majority and minority, and it is rooted in relationship, traditions, emotions, as well as dealing with each other in good ways. Justice is seen in the view of making families and communities strong again, and the system is reliant on own ways of doing justice by the community. Aboriginal justice system is focused on root causes and creating balance and considers all individuals related and co-responsible; harms are signs of imbalance in community (Proulx, 2000). Justice is guided through heart thinking and balancing the physical, spiritual, mental and emotional realms. The offender is considered to need good relations not punishment. Proving a case is through confronting denial in offender through family and community participation using talking things out, respect, solidarity, interdependent relationships and love as methods of justice. Dupius (2001) explains that the Aborigines see justice as a way of life, and revolves about who one is and finding identity within the community. To them, justice serves the function of healing the root causes of imbalances.
Sentencing circles involve facilitated community meetings attended by victims, offenders, their families and friends, interested members of the community and usually representatives of the criminal justice system. Participants are grouped into a large group or divided into two circles - the inner and circle (Thornton and Todd, 2001). The inner circle includes the victim, the offender, their supporters and criminal justice professionals who are usually involved in a court. The outer circle is composed of community members and experts who may be invited to provide certain expert information. The facilitator, referred to as the keeper, keeps the process orderly, periodically summarizes the proceedings on behalf of those present in the circle, ensures respect for the teaching of the circle, mediates differences and guides the circle towards a consensus (Proulx, 2000).
The process of the sentencing circle is systematic. A circle is usually opened with a prayer, which heightens the spiritual awareness of participants and calls them to reach beyond their immediate emotions in seeking responses to problems. Most prayers highlight the interconnectedness of all things and all persons and enkindle in the participants a feeling of being part of the community. McCaslin (2005) explains that this makes the participants start feeling that pain of the people directly affect by the crime is also shared by others, that the disharmony caused by the offence affects the entire community and that everybody in circles shares responsibility for finding solutions to the problems. Then the keepers of the circle make welcoming statements, introduce themselves and ask other participants in the circle to say their names and vindicate their presence in the circle. Keepers discuss the teachings of the circle and derive guidelines from them, such as speak from the heart, allow other to speak by speaking briefly, respect others by not interrupting them, remain until the end of the circle and so on
The circle enables its participants to be heard, express their views and feelings about the offence and propose solutions. Those who participate in the process speak on at a time and may discuss a wide range of issues regarding the crime. The issues discussed may help to understand why the offence occurred and what ought to be implemented to address the needs of the victim, hold the offender accountable and prevent similar incidents in the future. The discussions need not focus exclusively on the offence committed. They may go beyond immediate issues and uncover deeper problems. The judge, who is present during the process, passes a sentence and makes recommendations based on the deliberations made in the circle.
One of the potential problems facing sentencing circles is that they can be time-consuming. Williams (2002) notes that they can be a costly undertaking that involves far more court time and use of professional time. Moreover, circle sentencing is usually only available to those offenders who plead guilty. Sentencing circles are practised exclusively among the Aboriginal communities and individuals. This builds a coinciding set of group dynamics - that of minority Aboriginal interests against those of mainstream society. Even though the traditional adversarial process is prone to dissonances between the state and offender or offender and victim, the sentencing circles are prone to another schism - between Aboriginal and the white. Another potential problem is that in the future, community may be less than vital part of people's lives. Thornton and Todd (2001) discuss that the traditional values and institutions that once defined and maintained their communities have been tremendously usurped. In the wake of attempts to Christianize, civilize and assimilate them, what is left of many Aboriginal communities on modern reservations and in the north may be all that is left to them.
Other processes by which Aboriginal communities are involved in the criminal justice system.
In the recent years, aboriginal communities in Canada have become increasingly involved in developing community-based criminal justice services and programs, which are designed to better address the specific needs of the community residents, victims and offenders (Williams, 2002). This has included the development of reserve based, aboriginal-controlled police officers and a wide range of community justice programs and services centered on diversion and mediation. In addition, collaborative arrangements between aboriginal communities and criminal justice agencies have been established to create alternative mechanisms for justice delivery. There are numerous examples of collaborative arrangements between aboriginal communities and criminal justice system. They demonstrate adoption of a novel all-inclusive approach to criminal justice centered on Aboriginal tenets, customs and beliefs, and reflects the Aboriginal concept of justice in the conventional justice system.
The Teslin Tlingit first nation (Yukon Territory) community justice initiative has implemented a number of alternative community justice structures. The intent is to create programmes and services, which interface with the non-aboriginal criminal justice system and better meet the needs of the community members. The Teslin Tlingit council constitution sets out the roles of the leaders of each of the five Teslin clans, which includes serving as members of the Teslin Tlingit justice council (Thornton and Todd, 2001). This council functions as a tribunal and passes sentence on offenders convicted in the territorial court in Teslin. Bound only by the limits set by the judge of the territorial court of the Yukon and informed by submissions from the defense lawyer and the prosecution, the Justice council imposes sentences that are apposite for the conduct of the offender and the restoration of harmony in the community. To date, Dupius (2001) documents that 98% of all sentences handled by community members in Teslin have fallen within the limits set by the court. This approach is beneficial because it involves every community member in ensuring that offenders obey the conditions of their sentence and helps increase the odds that the offender will be supported and that the conditions will be met.
The other example is The Hollow Water (province of Manitoba) resource group, which is a programme initiated at the community level by several survivors of sexual abuse (Proulx, 2000). An attempt is made to restore community, family, and individual peace and harmony. A healing contract is signed, and offenders apologize publicly to the victims and to the community for the offences they have done. The response is one, which is designed to consider the needs of all the parties to the abuse -the victim, the offender and the community and is directed beyond merely punishing the offender for a specific behavior.
The Canim lake (Province of British Columbia) family violence programme is an Aboriginal community-based, band controlled family violence programme designed for the handling and healing of adult and juvenile sex offenders as well as for the victims of sexual abuse (McCaslin, 2005). One component of the programme is the identification of sex offenders in the community who has not been detected by the police or otherwise subjected to sanctioning by the band. During an amnesty period, these individuals can contact the family violence committee and acknowledge responsibility for their offences; they are then through a diversionary scheme, placed in a treatment programme without being subjected to criminal charges. The specific treatment interventions blend modern clinical techniques with traditional Aboriginal healing practices and address the needs of the offender and the victim within a family and community context. To disqualify for the treatment programme and as a condition of being diverted, the offender must sign a contract indicating a commitment of completing the treatment programme.
The Aboriginal community council is a forum for the hearing of cases of Aboriginal persons in conflict with the law. The project is funded by the attorney general of Ontario and operated by Aboriginal legal services of Toronto (Thornton and Todd, 2001). The programme is premised on the practice of diversion and is an attempt to allow the aboriginal community in Toronto to assume control over the response to, and setting of sanctions for, Aboriginal persons charged with the offences in the city. The council, comprised of Aboriginal volunteers, reaches decisions by consensus and has a number of dispositions to draw from, including fines, the payment of restitution to the victim, completion of a certain time in community service or referral to a treatment service. An evaluation (Williams 2002) of the project identified a number of positive attributes including the programme was designed and is controlled, by the Aboriginal community; the programme is offender based, rather than offence focused; the project functions to facilitate offender access to urban programmes and services; the project is holistic in its orientation; and offenders participating in the project feel that their individual needs are met by the community council process. The finding of the independent evaluation suggests that the community council model holds considerable promise as one strategy to address the needs of the urban aboriginal community.