Plenary Speaker, Friday, August 9, 2002
From "Dreaming of a New Reality," the Third International Conference on Conferencing,
Circles and other Restorative Practices, August 8-10, 2002, Minneapolis, Minnesota
Restorative justice is a broad term that encompasses a variety of distinctly different activities that can occur prior to, during or after a criminal prosecution. Circle sentencing is one such restorative justice initiative. It aims to recognize the needs of victims, secure the participation of the community, and identify the rehabilitative needs of the offender. Unlike many other restorative initiatives, it is part of and replaces sentencing in the formal justice system. It engages the community and the formal justice system as partners, and to a lesser extent victims and offenders in the resolution of criminal justice-based disputes. Although initially used to address the special circumstances of Aboriginal offenders in criminal proceedings, circle sentencing has also been used for non-Aboriginal offenders. The process is as well suited for adults as for young offenders and is sufficiently flexible to be adapted to other situations, including child welfare disputes. Circle sentencing has many of the attributes of family group conferencing, as developed in Australia and New Zealand, while avoiding many of the criticisms levied against restorative justice programs. It is not a panacea and its use should be restricted to motivated offenders who have the support of their community.
The Canadian Situation
Canada has one of the highest incarceration rates in the world, substantially higher than comparative rates in most European countries, Australia and New Zealand, but less than the United States (Canadian Centre for Justice Statistics 2000). When only youth incarceration is considered, Canada's incarceration rate exceeds that of the United States by almost 50 percent: 447 per 100,000 youth, compared to 311 per 100,000 youth in the United States (Hornick, Bala and Hudson 1995). The high youth incarceration rate for young offenders does not tell the whole story. Over half of the young people are sentenced to custody for property offences, not for crimes of violence. When incarcerated for the more common offences, such as theft and breaking and entering, young persons were likely to receive a longer jail sentence than adults convicted of the same offence1 (Canadian Centre for Justice Statistics 2000).
The situation is even more severe for Canada's Aboriginal people, as numerous studies and commissions have documented (Hamilton and Sinclair 1991; Cawsey 1991; Linn 1992; Royal Commission on Aboriginal Peoples, 1996). Aboriginal people are incarcerated more than eight times the national rate. This over-representation is significantly higher in the northern territories and in the prairie provinces (Lilles 1990; Jackson 1989). Crime rates in Aboriginal communities remain high and the number of Aboriginal persons in Canadian jails continues to increase and absent radical change the problem will intensify (The Royal Commission on Aboriginal Peoples 1996). The over-representation of Aboriginal youth in the criminal justice system appears to parallel that of adults (Doob, Marinos and Varma 1995).
These harsh realities were apparent to many working in the front lines of the justice system and resulted in Judge Barry Stuart of the Yukon Territorial Court convening a sentencing circle in the case of Philip Moses.2 The circle is premised on three principles that are also part of the culture of Yukon's Aboriginal people. Firstly, that a criminal offence represents a breach of the relationship between the offender and the victim as well as the offender and the community, and secondly, that the stability of the community is dependent on healing these breaches. The third premise is that the community is better positioned to address the causes of crime, which are often rooted in the economic or social fabric of the community. These principles are consistent with how restorative justice views crime: not merely as an offence against the state but as an injury done to another person and the community that must be repaired.
The Circle Sentencing Process
Circle sentencing is a process adopted by judges as an alternative to hearing formal sentencing submissions from the defence and Crown lawyers. Circles require a significant commitment from community members, so it is in the community's interest to limit access to those individuals who demonstrate high levels of motivation and commitment to the process. The offender must normally enter a plea of guilty at an early stage of the proceedings indicating a full acceptance of responsibility for the offence.
Circle sentencing is used almost exclusively for serious cases meaning that the offence is serious or the circumstances of the offender are such as to justify a significant intervention.3 It is not often used for minor charges, as the process is intrusive, lengthy and requires a significant commitment from all participants.4 It has been used for both adults and youth, but primarily for Aboriginal offenders. It should be emphasized that circle sentencing is not a form of diversion, that it is part of the court process and that it results in convictions and criminal records for offenders.
The procedure is as straightforward as the name suggests. Everyone in the community is invited to attend and participate. Chairs are arranged in a circle and the session is chaired either by a respected member of the community, sometimes called 'the keeper of the circle' or by the judge. Usually between 15 and 50 persons are in attendance. The participants in the circle introduce themselves, then the charges are read and the Crown and defence lawyers make brief opening remarks. The community members then speak. A justice system professional participating in a circle for the first time may wonder about the relevance of much of what is said during a circle sentencing. Unlike a formal court-based sentencing, the discussions focus on more than just the offence and the offender and often include the following matters:
- The extent of similar crimes within the community;
- The underlying cause of such crimes;
- A retrospective analysis of what life in the community had been before crime became so prevalent;
- The impact of these sorts of crimes on victims generally, on families and community life and the impact of this crime on the victim;
- What can be done within the community to prevent this type of dysfunctional behaviour;
- What must be done to help heal the offender, the victim and the community;
- What will constitute the sentence plan;
- Who will be responsible for carrying out the plan, and who will support the offender and victim in ensuring the plan is successfully implemented;
- A date to review the sentence and a set of goals to be achieved before review.
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.
In most cases, these discussions will take from two to eight hours, usually spread out over two separate circle sentencing hearings. Often at the end of the first circle, the offender is given a set of goals to determine if he can follow through with his plan before a final sentencing plan is imposed. The circle will reconvene several weeks, or even months later, to review the offender's performance and make any necessary changes to the recommended plan. At this time, the judge will impose the final sentence incorporating the recommendations of the circle.
In formal court, the justice system professionals dominate and control the sentencing process. The decision imposed by the judge is largely based on legal principles and precedents that may only be marginally relevant to the offender and his community and seldom addresses the real concerns of the victim. In a circle sentencing, the court hears less from the lawyers and more from those directly or indirectly affected by the crime.
Circle sentencing has not been authorized by statute but exists solely as a result of judicial discretion.5 Nevertheless, it is still a sentencing hearing and is part of the court process. It follows that the procedure is not rigid but must conform to the rules of natural justice and other legal requirements imposed by statute or common law. For example, the law requires the following safeguards be present in all circle sentencing hearings:6
1. Any criminal record or any other reports are received and marked as exhibits in the circle hearing process.
2. A record is made of the proceedings.
3. A disputed fact is judicially determined in the usual manner through evidence heard under oath.
4. The circle hearing is open to the public.
5. The offender must participate voluntarily.
6. The offender is entitled to representation by counsel and to address the circle.
7. A Crown attorney is present and able to speak to the public interest, ensure victim's issues are fully canvassed and make recommendations with respect to sentence.
8. Media are allowed to attend and to report on the proceedings, although restrictions may be imposed on attributing statements to specific individuals in the circle.7
9. Participants in the circle must have access to any documentation filed with the court, including the pre-sentence report.
10. The judge has the sole responsibility for imposing the sentence, which must be a fit one in accord with the law.
11. The decision is subject to appeal or review in the same manner as any other court decision.
Notwithstanding these common legal requirements there can be substantial differences in how circle sentencing is conducted. These differences arise because community members are directly involved in deciding what the circle process should be and this allows for the inclusion of culture and traditions. Available community resources will influence the kinds of cases the community is prepared to undertake.
Judge Stuart makes the argument in favour of diversity:
This is a good and necessary development. Significant differences in demographic composition, cultural, social, economic, and geographic conditions render each community unique. A process for resolving conflict must accommodate the special circumstances, blessing or hindering the specific ability of each community to process conflict. Recognizing the uniqueness of each community, and the uniqueness of each dispute, warrants departing from the audacious presumption of the formal justice system that 'one process fits all forms of disputes' (Stuart 1996).
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
In R. v. Johns, Prowse J. A. stated:
In my view, however, circle sentencing is no longer in its embryonic stages, particularly in the Yukon. ... That being so, further heed must be paid to the recommendation of the Yukon Territorial Court of Appeal in R. v. Johnson ... that rules, or, alternatively, well-publicized guidelines for circle sentencing, should be established by Territorial Court judges, with the assistance of those with expertise in the process.
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 the Circle
The result of the circle sentencing hearing is most often a community-based disposition involving supervision and programming. The terms of the order are quite lengthy and detailed, specifying attendance at pre-determined counseling and treatment programs, and may also include culturally relevant conditions that would rarely be found in a probation order made in formal court.9
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.
Very few offenders who participate in circle sentencing fail to complete their community disposition successfully. Several reasons account for this. It is generally appreciated that circle sentencing dispositions are 'tough' and as a result only those who are truly motivated will apply. As well, the requirements imposed as a condition of acceptance into the circle are demanding, and those who are not fully committed are screened out prior to sentencing. Most importantly, the sentence plan is an undertaking given by the offender, not to a foreign or faceless justice system, but to his own community.
Impact of the Circle
In Canadian Aboriginal communities, there are often ongoing relationships between the offender and the victim, and between their extended families. In a small community, many others can be affected by a criminal offence. The circle provides a safe environment to hear what happened, how it impacted on the victim and the community, how best to fix the damage that was done and how to prevent future offending. It is a restorative process because it requires wrongdoers to make reparation to the victim and to others harmed by the offending behaviour, including the community. It also expects offenders to restore themselves, meaning that they must address those personal issues that contributed to the offending behaviour, such as addictions, unresolved grief and historical abuse.10 The Sentencing Circle provides a voice for all persons affected by the offending behaviour, including victims and family members. It also provides a forum for those community members who, while not directly affected by the offence, are generally concerned about safety in their community.
Although sentencing circles have evolved significantly since the Moses decision, the goals, and advantages remain largely as stated in that judgment. Since everyone seated in the circle has equal standing, the dominance of the justice system professionals, the judge, lawyers and probation officers, is significantly reduced. At the same time, the role of the community members, including the victim and the victim's family, offender's family, neighbours and other interested persons is increased. This equality within the circle is essential to building a partnership between the community and the justice system. The circle process redirects significant responsibility for the offence, offender and victim back to the community.
The goal of the circle is to develop a consensus. As a result, the participants do not direct their remarks to the judge. Everyone speaks to the circle. The legal jargon and boilerplate submissions which are much too common in formal court are replaced with questions and information about the offender, victim, and about the resources available in the community. Much more information is forthcoming about the offender, his personal circumstances, his social history and the factors contributing to his criminal behaviour. The resulting disposition responds to the offender's needs and his risk factors and makes better use of the limited resources available in the community. The language used in the circle avoids legal jargon and, unlike formal court, can be understood by everyone present. The judge's decision, even when in written form, should speak to the community, the offender and the victim.
In a circle sentencing, the participants know that whatever the disposition, the offender will be coming back to their community, possibly to live next door. They have seen first hand the negative effects of jail sentences on family members or neighbors. As a consequence, they are much more concerned with rehabilitation and reintegration of the offender and healing of everyone affected by the offence, than with the mythology of general deterrence. The circle discussions and the involvement of the support group in assisting an accused person, force community members to look beyond the actions of the offender and to address the causes of crime in their community. If an offender re-offends, the community will better understand why, and will be less likely to blame the justice system, the police or the judge. In this way, the sentencing circle can be an effective vehicle for public legal education.
Circle sentencing shares many of the attributes of family group conferencing, one of which is that the offender must acknowledge responsibility for his actions at a very early stage of the proceedings (Maxwell and Morris 1994). The victim benefits from knowing at a very early stage that an adversarial trial will be avoided. The acknowledgment of guilt must be made before his family, members of his community and the victim, if present. Without defence counsel to act as a buffer and to speak on his behalf, the offender must address the circle and explain his actions. He hears directly about the pain and fear experienced by the victim and the disappointment of his family and community. While expressions of remorse in a formal court setting often sound hollow and insincere, the remorse expressed in the circle is emotional, is often accompanied by tears and includes a genuine apology.
The circle allows the offender to participate in shaping the sentence plan, thereby taking back a measure of control over his life. He is extended the dignity of offering to make amends to the victim, his community and his family and to have input into his own healing plan. The circle makes a clear distinction between the 'bad' actions of the offender and the offender himself who, like most people, has many good qualities. The supportive statements made in the circle by community members usually surprise young offenders. This community support contrasts with the negative feedback these same young people often receive from parents, teachers and justice system officials on a regular basis.
Less time is spent by the probation officer in supervising the offender as the support group and other family members are sharing this responsibility. More time is spent in identifying and developing suitable programs, working with and training the offender's support group. As a result, community development becomes a more significant part of the probation officer's job description.
The circle generates dialogue among the offender, his family and the community. This process models communication for family members where effective communication is often lacking. But equally as important as dialogue, the process also engages the participants and triggers a full range of emotional responses that are discouraged in the formal justice system (Stuart 1998). This shared emotion, as much as the shared ownership of the sentencing plan, creates a degree of commitment and responsibility on the part of everyone, including family members, rarely generated in a formal court setting.
Barriers to Implementation
Circle sentencing, along with other restorative justice initiatives, face significant barriers to implementation. As long as the public, encouraged by the media, continues to be anxious about crime, it will be difficult to convince politicians to abandon their 'get tough on crime' policies. Restorative programs such as circle sentencing are wrongly viewed as easy options that are inconsistent with crime reduction. Similarly, judges may be reluctant to adopt a sentencing approach that appears to be “soft” while the public is demanding stiffer sentences for criminals. In order to overcome these barriers, a concerted effort will have to be made to convince the public that jailing offenders and young offenders in particular, for long periods of time is not a cost-effective way to reduce recidivism or to increase public safety (Greenwood, Model, Rydall and Chiesa, 1996).
Circle sentencing is more time consuming and therefore more expensive than processing offenders through the formal court system. Unlike other restorative processes, it is a court hearing and therefore requires the involvement of a judge along with support staff. It cannot be fully delegated to others, as can family group conferencing or other programs that divert young offenders away from court. As a result, resistance to adopting circle sentencing can be expected from a number of different sources. Administrative judges will worry about delay and the resulting backlog of cases. Governments may not see beyond the short-term increases in cost to the benefits that may only be realized in the longer term. These longer-term benefits will be difficult to measure and are therefore difficult to sell to the public. For example, greater community participation in the justice system will result in a more informed public, which in turn should reduce public demands for harsher sentences and decrease the need for more jails and corrections staff.
Many justice system professionals, including lawyers, will resist giving up or sharing control with members of the community. Judges may also resist giving up their role as ultimate decision-makers. Required by law to impose the sentence, the weight given to circle deliberations will determine whether the community is indeed a full partner. On one hand, the judge may view the circle's deliberations as merely advisory. The other view is to adopt the recommendation of the circle as long as it falls within the scope of a fit and proper sentence (McNamara, 2000). Unless the judge is prepared to concede substantial decision-making authority, there will be little motivation for the community to participate.
Most of the reported cases have involved Aboriginals living on reserves or small communities in largely rural or remote locations, where the offender's community is a geographic one and is well defined. Since nearly everyone in that community has experienced, directly or indirectly, the negative impact of the formal justice system, they are therefore willing to volunteer and participate in a non-retributive alternative. But a large number of Aboriginal people live in major urban centers, away from their immediate families and their original geographic community. Community in an urban setting, however, need not be defined in geographic terms. A number of urban initiatives that incorporate aspects of circle sentencing have sought to include people with similar experiences and shared interests who understand the issues facing the offender. One of these is the Aboriginal Legal Services of Toronto Community Council. The underlying philosophy of this project is that the Aboriginal community in Toronto is in a better position to respond to the needs of Aboriginal offenders than is the formal justice system. Aboriginal volunteers participate in the program, reach decisions by consensus and have a wide range of restorative dispositions to draw from, including referrals to treatment. An evaluation of this project was largely positive (Moyer and Axon 1993). In fact, circle sentencing has great potential in urban centers because unlike small isolated communities, they are rich with organizations such as service clubs, recreational clubs, churches, schools and trade unions that share a sufficient connection with their members to qualify as “communities of interest”. While it may require a greater effort to identify and involve these urban communities in circle sentencing, the results may be more rewarding, due to the varied experience and educational backgrounds of the participants.
There are significant differences in culture among Aboriginal peoples across Canada. Circles and decision-making by consensus may not be part of a particular Aboriginal group's traditions (Cronovich 1993). This concern speaks to the importance of communities being directly involved in the preparation and planning of their own community justice initiatives. Circle sentencing is only one point in the restorative justice continuum and a community may well choose a different one, more consistent with its traditions (Lilles 1997).11 Circles provide an effective forum for communicating and problem solving and can be adapted for use for other than justice-related purposes.12
In Canada, Aboriginal peoples hold the view, with some justification, that the “white man's justice system” has not worked for them and has added to their victimization. As a result, in its eagerness to reject the formal justice system, a community may adopt circle sentencing before it is ready to do so. Circle sentencing, and other community-based initiatives, require a critical mass of healthy participants who are able to support and counsel both victims and offenders. In this sense, healthy refers to emotional health, family stability, and an absence of substance addictions. For this reason, some communities may not be ready to take on these responsibilities and may require, as a first step, to engage in a broader program of healing (L Ellerby and J Bedard 1999).
In attempting to help their members, communities may take on cases that place too many demands on their available resources. Sexual offending, domestic violence, chronic substance abuse and mental illness are not uncommon in many Aboriginal communities. Many Aboriginal youth charged with sex-related crimes suffer from fetal alcohol syndrome or fetal alcohol effects. In order to deal with these cases effectively, experienced counselors, long-term programming and professional support will also be required, but are often not available in small communities. When communities attempt to deal with such cases using only traditional methods, they may encounter frustration and failure and this in turn will undermine the credibility of their program.
Circle sentencing aims to keep offenders in their communities and as a result fewer jails will be needed. Government may be tempted to use these savings for some other unrelated purpose. Whether one is dealing with family group conferencing, circle sentencing or other community based restorative justice processes it is important that sufficient resources are made available to enable the offender to rehabilitate successfully in the community.
Circle sentencing and other restorative justice alternatives that are designed to keep offenders in the community create concerns about victim safety in small isolated communities, where victims have no anonymity and are particularly vulnerable (Crnkovich 1993). The absence of counseling or treatment programs in the community exacerbates these concerns. The circle must be constituted so as to be able to address concerns about victim safety if the offender remains in the community. That concern will be heightened where the offence involves personal violence and even more so if it is domestic violence. Where that concern cannot be alleviated, the judge may have no choice but to remove the offender from the community, as victim and public safety must remain the highest priority.13 In comparison to adults, young people are more likely to be involved in property-related crimes and low level assaultive behaviour, and will therefore present less of a public safety risk (Canadian Centre for Justice Statistics 2000). This risk will be further reduced if community members are willing to participate in supervising the young person.
Deciding which cases are eligible for circle sentencing can also create concerns. While the community must necessarily have considerable input, the decision should not be perceived as biased by favoritism or the exercise of power by a dominant family group (LaPrairie 1995). Such perceptions can be alleviated if the judge makes the decision, after hearing from community representatives and counsel. By establishing criteria for eligibility, communities can minimize disputes that will inevitably result if eligibility is decided on an ad hoc basis.
Attendance at the circle may also be problematic. The community may wish to keep the proceedings private and exclude the media, contrary to the requirement that criminal proceedings must be open to all members of the public, subject only to very limited exceptions prescribed by law. The offender's support group at circle sentencing hearings may be disproportionately large in comparison to the support available for the victim. There can also be power imbalances within Aboriginal communities (Griffiths and Hamilton 1996), where political and economic power resides with a few families, and others are totally dependent on those in power for housing and employment. Care must be taken, therefore, to ensure that the views expressed at the circle are balanced, that recommendations are not dictated by relatives of the offender, and that the victim's issues are not displaced by the discussion focusing exclusively on the needs of the offender. Involving community representatives, counsel and victim workers in planning for a circle sentencing can ensure a proper balance among those attending and the views expressed at the circle.
Not all victims attend circle sentencing hearings and, in the absence of reliable research data, it is not possible to determine accurate participation rates. One can state with confidence that a greater proportion of victims attend circle sentencing hearings than formal court sentencing proceedings.14 The absence of the victim, however, does not mean that the victim's views are not put forward. A victim impact statement is made available, as in formal court proceedings. In addition, a close relative is often in attendance and speaks on behalf of the victim, as will friends of the victim. It is often the case that other participants who have experienced similar victimization in the past act as surrogate victims by speaking about their experiences. It is nearly always the case that the harm done by the offender to the victim is communicated clearly and often very emotionally to the offender.
Some court decisions have held that victim participation is a prerequisite for circle sentencing.15 This argument fails to recognize that circle sentencing is part of the court process and that victims rarely attend sentencing hearings in formal court. It should not be considered a benefit for the offender but rather an alternative process with safeguards for all involved. While circle sentencing encourages the attendance of victims, it is not intended to be entirely victim oriented, as its goals include providing a forum for community involvement and the improvement of the offender's prospects for rehabilitation. These goals can be achieved even in the absence of the victim. Others have noted that giving the victim a veto will transfer an unacceptable degree of power to the victim and could result in a disparity of treatment for similar offences depending on the victim's participation (Roberts and LaPrairie, 1996).
Sometimes the victim does not share the offender's culture and traditions, does not live in the same community and has no interest in attending or participating in circle sentencing. In such instances, the circle sentencing can be adjourned in order to convene a formal court session for the sole purpose of hearing from the victim if she wishes to address the court.
Victims can be encouraged to attend by receiving information about the circle early in the process. Individuals who would support the victim should also be identified well before the circle sentencing. Independent victim support workers who are employed to assist victims in formal court proceedings should also be available to support and advise victims who attend circle sentencing hearings. The hearing should be scheduled at a convenient time for the victim and any financial costs incurred, such as babysitting or loss of employment income, should be reimbursed. As Stuart J. noted in R. v. Moses, ibid:
Much work remains to find an appropriate means of including the victim or, at the very least, including the impact of the victim in the sentencing process.
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.
As in the case of diversion and mediation, there is a concern that offenders may feel coerced into participating in restorative alternatives such as circle sentencing. Some may perceive it as an opportunity to receive a lesser sentence and others may feel pressure from the community to participate (Levrant, Cullen, Fulton and Wozniak 1999). In the case of circle sentencing this is a legitimate but overstated concern. It should be remembered that the formal justice system is itself coercive. In every criminal prosecution the defendant is subject to pressure. Young people in particular are subject to pressure from their own family, their peers, the police and even their own lawyer. Secondly, the formal justice system offers many similar options, such as to pay a fine instead of going to jail and to plead guilty to a plea-bargained lesser sentence. Finally, unlike most diversionary alternatives, circle sentencing is open to the public and, because it is part of the court proceeding, it is subject to numerous safeguards, including the entitlement to legally funded counsel. The concern should not be whether the offender is subject to pressure to act in a particular way, but whether the pressure was improper or so excessive as to render the offender's decision involuntary. In the case of impropriety, all of the remedies available in formal court are available to the offender if he chooses to be sentenced in circle court.
Alternative sanctions create the possibility of net widening (Gendreau, Goggin, Cullen and Andrews 2000). Because of the time and cost involved, it is highly unlikely that minor offences that were previously not charged or dealt with in a less intrusive manner would be referred to a circle. In any event, because circle sentencing is subject to judicial supervision and the offender receives legal advice from counsel, the likelihood of net widening is lessened. On the other hand, substituting a highly supervised community disposition for a period of incarceration will significantly increase the likelihood of detecting both technical and substantive violations. It is not uncommon for young offenders to breach their curfew, consume alcohol or drugs or fail to attend school while on their sentence. This could, in theory, result in a revocation of the community disposition and the imposition of a longer period of incarceration than that which would have been imposed had the offender not elected circle sentencing. When breaches occur, however, the circle reviews them and provided the offender continues to have the support of his community, the original sentencing plan is rarely terminated.
Aboriginal young offenders often come from dysfunctional homes. Family group conferencing, along with other restorative programs, does not attempt to address the shortcomings of parents, such as substance abuse or substandard parenting skills. This limitation is shared with the formal justice system, as the court is precluded from imposing conditions on the parents of an offender, even where parental limitations are identified as contributing to the young person's behaviour. Any benefit that may accrue to the young person from the conferencing experience or a court ordered disposition is likely to disappear after the young person returns to such a home environment.
The circle is also unable to impose formal obligations on the parents of an offender. But as a result of circle discussions, parents may better understand how their behaviour has contributed to their child's misconduct and what they can do as parents to assist their child. As this discussion occurs in a non-adversarial and supportive setting, it is less threatening and more likely to be acted upon. It is not uncommon for the offender's sentencing plan to include attending a residential alcohol treatment program with his parents and sometimes with his entire family.
The assumption underlying family group conferencing and other restorative programs is that holding the offender accountable directly to the victim will create an awareness of the consequences of his behaviour and will deter similar offending in the future. But many young people who come before the courts charged with criminal offences are often emotionally and psychologically wounded. This is particularly true of Aboriginal youth. A closer examination of their social histories often reveals physical and emotional abuse or neglect, sexual victimization, early onset conduct disorder, fetal alcohol syndrome or effects, or a history of substance addiction starting at a very early age. Considering what is now known about changing offender behaviour, there is little reason to believe that family group conferencing or similar confrontations with victims will significantly reduce recidivism or promote rehabilitation for this category of offenders (McGuire 1995; Leschied 1999).
Circle sentencing, in contrast with extra-judicial restorative programs, can access professional resources, including assessments and treatment options by court order. Such programming, if directed at the specific criminogenic needs of the offender, could reduce recidivism significantly (Andrews and Bonta 1998; Anand 1999). In many cases, however, this professional help is not available in the community, and the court order will require the offender to attend in a larger center some distance from his family. That program may also require some family participation, and this will make attendance difficult, if not impossible. In some cases, the needed program may only be available in a custodial setting, and the judge may be faced with both a legal and moral dilemma: when, if ever, is it appropriate to impose a custodial disposition solely for the purpose of accessing treatment resources? As difficult as this decision is, it is by no means unique to circle sentencing as it also arises in formal court proceedings.
Circle sentencing relies heavily on the services of volunteers, and in small communities these individuals are in great demand. Without administrative and even financial support, these volunteers will, over time, “burn out” and the program may disappear (Lilles 1997). At the same time, there are also risks associated with governments funding community based justice programs. Invariably, such financial support will come with conditions attached. In the case of circle sentencing, it will create an opportunity for government and bureaucrats to control and thus disempower what must remain a community initiative if it is to be effective.
Role of the Judge
As circle sentencing is an integral part of the criminal court process, the presiding judge must impose the sentence and must be apprised of the reasons for it. Nevertheless, the extent of the judge's involvement can vary significantly. In some communities, the offender must first meet with a local justice committee and initiate a healing plan in order to receive community support for circle sentencing. The involvement of the court and the judge will thereby be reduced, as a rehabilitation plan will be in place and a community consensus will be well advanced prior to the circle sentencing hearing. In other cases, the community may not have been involved at all prior to court and the circle sentencing may take hours spread over two or more hearings on different days, sometimes weeks apart.
Although judges have been criticized for permitting certain cases to be dealt with by way of circle sentencing, no one has questioned the propriety of judges presiding over such hearings. The primary concern is that circle sentencing takes more time than hearing the same case in formal court and as a result the judge and court staff are unavailable to conduct other cases. It is also difficult to predict how much time a particular case will require and as a result these hearings can interfere with normal court scheduling.
Several questions have arisen regarding the judge's role at circle sentencing hearings. Is the circle merely advisory or is the consensus developed by the community normally adopted by the judge, provided it is not contrary to law? As a matter of law, the judge must make the final decision and is free to disregard the circle consensus. As a matter of practice, if the judge consistently rejects or modifies the recommendations from the circle, there will be little motivation for community members to continue to participate and the program will certainly fail.
Does the judge participate actively in the circle discussion or is the judge's role primarily one of listening? Active participation by the judge, who is viewed as a person with stature and authority, will likely influence the outcome of circle discussions. As a result, the consensus will not be 'owned' by the community. On the other hand, it would be helpful, in most cases, for the judge to outline the parameters of a fit sentence to provide general guidance for the circle to minimize the possibility of the resulting decision being overturned on appeal.
Of greater concern is the role of the judge working with the community to develop circle sentencing as an alternative to formal court. In the Yukon and elsewhere in Canada, the judiciary has led this initiative. It usually entails many community meetings and meetings with both Crown and defence counsel. In the result, the initiative may be associated more with the judge than the community. The public may rightly wonder whether the judge is truly dispassionate, independent and unbiased in these circumstances.
Judges, as a result of their training and experience, expect to control the court process and influence, if not determine its outcome. Circle sentencing insists that the judge surrender much of this authority and control to the circle and the community. Not all judges are comfortable or even capable of doing this.
If a consensus is not reached during the hearing, the judge can adjourn the case in order to obtain further information, to allow the parties to consider other options to resolve outstanding differences or to allow the offender to demonstrate his commitment to the rehabilitative plan. When it becomes obvious that there is no reasonable prospect for a consensus, the onus falls on the judge to make a sentencing decision. The absence of consensus should not be viewed as a failure, because the judge will have the benefit of detailed information and a full discussion of all outstanding issues and will thus be better equipped to make the sentencing decision (Stuart 1996).
Application to Different Cultures
Canadian society, in common with most other developed countries, has become more culturally diverse over recent decades. Many minority groups have settled in larger centers and have difficulty relating to the formal justice system because of differences in culture and language. These differences also create challenges for the justice system. Judges are mandated to impose dispositions that are meaningful, promote accountability to victims and society and that are also rehabilitative. This requires the judge to be sensitive to the cultural differences between the court and the offender, the victim and their immediate communities. It is not practical, or even possible, for judges to become knowledgeable about the many different cultures represented by the diverse range of ethnic accused persons who appear in court. Involving members of the offender's or victim's cultural community in circle sentencing can bridge these cultural gaps and can result in dispositions that accommodate the different cultural expectations of victims, offenders and their families and satisfy their respective ethnic communities.
As a model of restorative justice, circle sentencing is unique because it requires a partnership between the community and the formal justice system. Each gives needed legitimacy to the other. Community participation creates an opportunity to learn about the causes of crime and to take steps to prevent future offending. There is every reason to believe that this approach could be adapted to urban centers and to all cultures.
At the same time, many of the concerns associated with restorative justice and community justice programs are alleviated. Offenders retain all of their due process protections. Communities can call on resources available in the formal justice system as well as those in their community. Victims are given a voice and an opportunity to confront their offender in a safe and supportive environment. The court imposes the final sentence and therefore offender accountability is increased. Circle sentencing holds the promise of not only improving the delivery of justice to the communities but also influencing the formal justice system to become more responsive and fair (Linker 1999). This will be accomplished when judges, lawyers and other justice system workers apply their experiences from circle sentencing in formal court.
Nevertheless, circle sentencing should still be considered a “work in progress”. Much more must be done to increase victim participation. Community participants require more support and training. Additional community based programs for offenders and victims need to be developed. Finally, comprehensive evaluations that measure more than recidivism rates are needed in order to make better decisions about what works best for victims, offenders and the community.
1 This result is surprising for several reasons. Adult offenders, due to their greater age and additional years at risk, are more likely to have lengthy criminal records. In addition, the Canadian Young Offenders Act, R.S.C. 1985, c.Y-1 directs that young people should not receive a harsher sentence than that given to an adult for the same crime.
2 R. v. Moses (1992), 71 CCC (3d) 347 (Yukon Territorial Court). This case is generally recognized as the first circle sentencing in Canada, upon which many other initiatives in Canada and elsewhere have been modeled.
3 The most serious cases, however, will be excluded if a lengthy period of imprisonment must be imposed to protect the public or to denounce the offence.
4 But see R. v. Rich (No. 1),  4CNLR167 (Nfld. S.C.) where O'Regan, J. stated that 'sentencing circles will be most useful in minor cases'.
5 The practice of Circle Sentencing was indirectly endorsed in the Supreme Court of Canada decision, R. v. Gladue,  1 S.C.R. 688 (S.C.C.). The Court recognized the legitimacy of restorative justice, directed judges to use jail as a sentencing tool as a last resort, especially in the case of Aboriginal people, and recognized healing as an important cultural value to be used in sentencing.
6 R. v. Richard James Gingell (1996), 50 CR (4th) 326 (Yukon Territorial Court). This case also describes in detail the procedure followed by the Yukon Aboriginal community of Kwanlin Dun in circle sentencing hearings.
7 In Re Gingell and Canadian Broadcasting Corporation, August 14, 1996, Yukon Territorial Court TC-01480A (unreported), this limitation on attribution was unsuccessfully challenged.
8 R. v. Johns,  1 C.N.L.R. 172 (Yuk. C. A.); R. v. Johnson (1994), 31 C.R. (4th) 262 (Yuk. C.A.); R. v. Morin,  4 C.N.L.R. 37 (Sask. C. A.)
9 For example, in R v. Richard James Gingell, ibid, the circle recommended that the offender make a gift by way of money to each of the victims in accordance with Aboriginal custom, as a symbol of remorse and his acceptance of full responsibility for his actions.
10 Victims in circle sentencing hearings rarely ask for punitive sanctions for the offender. Instead, they frequently want the offender to participate in appropriate treatment or counseling so that the offending behaviour will stop and others will not be victimized. In a restorative context, making things right for the victim includes offender rehabilitation.
11 For example, one Yukon community has chosen a Clan Leader model, where the clan leaders sit with the judge as a sentencing panel, representing the community, and advise the judge on the sentence to be imposed.
12 It is quite common for meetings of all kinds to be held around a table, sometimes round, often rectangular, with one person designated to chair the meeting. Remove the table and designate the chair as the 'keeper' and a circle has been created.
13 Victim safety is a relative concept, for even when the offender is sentenced to jail, he will probably return to the community when his sentence is completed.
14 Based on the author's experience conducting circle sentencing hearings, it is estimated that the participation rate of victims at circle sentencing hearings in the Yukon is greater than fifty percent. Where there is a community coordinator for the program the rate is much higher.
15 See for example R. v. Rich (No.1), ibid. In R. v. Joseyoumen,  1CNLR 182 (Sask. Prov. Ct.) the court set out guidelines for circle sentencing which included victim participation but noted that these were not 'etched in stone'.
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