Circle Sentencing: Part of the Restorative Justice ContinuumHeino Lilles, Territorial Judge, Whitehorse, Canada
The victim is advised of the offender's application in advance and is provided with information about the circle process. The victim is assisted in establishing a support group and is encouraged to attend the hearing with the support group. Unlike formal court, where the role of the victim at sentencing is usually limited to providing a victim impact statement, the victim is a full and equal participant in a circle sentencing hearing.
The procedural variations which result from the community being a full partner in the circle sentencing process is at odds with legal culture and the reliance on precedent within the formal justice system. Several Courts of Appeal have been unable to appreciate the need for flexible rules in a community based justice initiative.8
Notwithstanding the urging of the Court of Appeal, Yukon Territorial Courts have resisted dictating procedures for circle sentencing to the communities (McNamara, “Appellate Court Scrutiny of Circle Sentencing', 2000). Rather, the communities have been encouraged to develop their own procedures, taking into account their traditions and available human resources. Nevertheless, as circles have similar objectives and must follow due process, the differences are not major.
After being sentenced in a circle, the offender's progress in following the sentencing plan is monitored by his support group, the community Justice Committee (if one exists) and a probation officer. Thereafter the offender can expect to appear before the circle several times in order to review his progress. How much contact has the probation officer had with the offender during the last review? Have referrals been made for alcohol assessment and counseling? Has restitution or community service been initiated or completed? Has contact been made with the counselors at the young person's school? Knowing that they will have to report to the circle, the probation officer and other professionals will be more diligent in fulfilling their obligations in a timely manner.
In Aboriginal communities, elders play an important role and their opinions are often sought in relation to important decisions. Their traditional views on the role of women in the family and how to deal with family violence may be outdated and in conflict with the attitudes of younger women in the community and society in general. Consequently, circle decisions may be skewed by both generational and gender differences (Griffiths and Hamilton 1996). On the other hand, a balanced circle provides a forum to discuss these differences in the relative safety of a court hearing. It provides an opportunity, not offered by the formal court process, to engage the community in discussion with a view to challenging outdated values.