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Restorative Practices Seen by the Court
Jean-L. Dutil, Provincial Court of Quebec

Posted 2000-08-12

I have sat many years in the Quebec Arctic with Inuit, and with Cree communities.

I still sit, at this moment in Northern Quebec in Innu communities spreading from Seven-Island to the Labrador border, and in other reserves situated some 350 miles of Seven-Island, in Schefferville and in Kawawachikamach, a reserve of Naskapi.

It was not because of a punishment from my chief judge that I go North in Inuit villages where I have to stay in Coop hotels where no food is supplied, and where I have to prepare the meals with other members of the Court, and most- of the time, serve them. However, sometimes, I wonder what I do there when I have to wash the dishes of a defence attorney with whom I may have got into an argument, at Court, during the day.

No, I was there at my own request, because I like to exercise that kind of justice, which I seem to literally feel, all the time.

We, the Judges sitting in reservation and in Aboriginal Northern communities are frequently asked how the cost of crime, human, social and financial in the administration of justice in those Northern and Aboriginal areas could be reduced.

I always tell them that there is only one way. That is to incite the Aboriginals and the Inuit to take more and more responsibilities and to become active inside our criminal justice system. For them, as it is for most of the Canadians, the most important decision is the sentence given by a Judge.

A sentence could be the beginning of a whole process of rehabilitation as it could be also the beginning of the disintegration of an individual.

I found out that the Natives do not show too much interest in our decision of guilt or non-guilt. Generally, they look at the ultimate end of a case, which is the sentencing.

The desire of the Inuit to have their say in the sentencing process was expressed clearly in the report of the Inuit Justice Task Force, issued in 1993. I cite briefly at p. 121:

“The present Court system must provide full community participation and involvement in the sentencing process.”

In the report “Justice for and by the Aboriginals”, presided by Judge J.C. Coutu, this is again expressed. All Aboriginal communities wish that the Judge considers their opinion before handing down certain sentences.

More recently, the members of the Royal Commission on Aboriginal peoples, in their final report, in 1996, say:

“The notion of obtaining community input to the sentencing process spread from the far North to other areas of Canada as well. The offender responds more deeply to concerns and suggestions expressed by members of the community than by a Judge who is removed in all ways from the offender's world.”

Many other commissions or committees are of the same opinion. As an example, I cite the reports of the Aboriginal Justice Inquiry of Manitoba, the report of the Saskatchewan Indian Justice Review Committee, and the report of the Cariboo-Chilcotin Aboriginal Justice Inquiry, in British Columbia.

The well known author, Rupert Ross, in his books translates also this desire of the Aboriginals.

Defence lawyers have realized that they open a box of surprise when they decide to bring a defence or a denial to the evidence brought by the Crown, and it is probably a reason why most of the accused plead guilty to the accusation.

The Aboriginals have a different conception of the truth. For them, the truth is the real truth. It is simple and direct, to the great despair of some defence lawyers.

Let me give you an example of a case I have heard, not long ago. A young woman who was rather intoxicated left the bar where she had spent a part of the evening. As she was walking her way, she was abducted by the accused and brought to an apartment where she was ultimately raped.

The next day, she went to the police, related that she was kidnapped and raped but, because of her drunkenness, she was unable to identify and point to her aggressor.

However, she said to the police officer, that in her head, the name of someone was always ringing, even if she could not relate him to the facts of the previous night

The individual was accused, and his lawyer pleaded not guilty to the charge. At trial, the victim was heard in Court, related what she remembered of her experience, that she was raped in the bedroom of the apartment, but could not identify the accused.

I felt that there was no case against the accused, but his lawyer insisted on presenting a defence. I really could not understand him, but it was his wish. He called his client, the accused, in the witness box, who said spontaneously that he raped the victim, but not in the bedroom, but on a couch.

The Inuit, in their language, the Inuktituk, have no word to identify a lawyer. Consequently, as for most of the things brought by the white people, they have to name the lawyer, by defining his functions. The Defence lawyer is called, in their language, “the one who lies for you” and the Prosecutor as “the one who wants to send you to jail.”

Going back to the participation of the Aboriginals in our justice system, I see it, for the moment, at the sentence level. Sentencing circles have been held now in almost all Provinces of Canada. They had their start in Yukon with our colleague, Judge Barry Stuart and quite a number of Judges have followed this initiative.

In my Province, I have held some in the Nunavik, with the Inuit. The comments were that this way of determining a sentence was as close as it could be to their traditional justice system, when every one in the community could say his word for the well being of the community. It seems that with the Circle, they could express their values and philosophy, which is totally different from ours.

In a circle I held in the Naappaluk case, cited in CCC, an elder said spontaneously:

“We want to help him. It will be easier now to help somebody because we can take part in the sentencing, and also because Jusipi has decided to talk to us.”

Circles move responsibility and authority back to community members, especially the victim and the offender. Having a say in a decision which will affect your life is the essence of democracy.

In the Native system, reconciliation, honesty, forgiveness and reintegration in the community were paramount. This is why deciding the sentence with them meets their conception of resolving disputes with their ancestral values.

I think that the sentencing circles have an enormous value for the Native. All those who have participated in a sentencing circle will tell you that they felt different afterwards. The circle brought them a sense of responsibility towards their fellow citizens, a certain well being which could be assimilated to a certain kind of spirituality. With a follow-up of the defendant by his fellow citizen, it could be a very valuable tool to curb the crime. It is however very consuming in time, for a travelling Court, as all the members of the Court are either participants or are waiting to leave when the circle is through.

We must understand that in the Inuit country, all the Court members travel from one village to the other in the same chartered plane. I had, one day, a circle that lasted close to 5 hours and finished at 1 o'clock in the morning. Then, we had to fly over 100 miles to go to another community where we were scheduled to sleep and start the Court at 9:30 a.m.

The situation is different in other areas, as it is in Yukon where I have sat for a few years, as Deputy Territorial Judge. A whole organisation is in operation to prepare the circles and to make the follow-up. Generally, the communities are accessible by road and a circle can mobilize only those who have to be there.

As an example, I cite the community of Kwanlin Dun, where we can schedule a circle at any appropriate moment, as it is only 15 minutes drive from the Court House of Whitehorse.

The ideal situation, in Northern Quebec, would be that we schedule the circle sentencings during the weeks when we don't sit regularly. We would have to figure the extra costs. I think however that those costs would be covered shortly and that after a certain time, our dockets would be shortened because of a permanent curb of the crime rate. Then, the savings would be valuable.

Another way to permit the Aboriginals to be really present in the sentencing process would be to help them create Justice Committees and to collaborate with them.

I would like to illustrate what I say in explaining the situation of a Naskapi reserve, in Kawawachikamach, in Northern Quebec.

With the collaboration of the Crown Prosecutor and the Defence counsels, we have called a meeting of the population. One evening, I have explained to them what was a justice committee, its goals, its function, its responsibility and its purpose. Many questions were asked and we left, telling them we could meet them again, one evening, during that week, should they need more information or should they decide to constitute such a committee.

We met them effectively 3 days later. They formed a committee of 10 persons by proposals and chose a president among them. The president could communicate with anyone as he speaks excellent English. The Committee is formed of 4 elders, men and women, and of 6 other members of the reservation.

Here is how the committee proceeds by the way. The dialogue and the communications between the crown prosecutor and the members of the committee are excellent. The members of the committee meet together on a regular basis, when the Court is not in the reserve, to make a follow-up of certain individuals and to examine various community projects.

As an example this year, the members succeeded to take possession of an isolated fishing camp where they send young offenders or “would be” young offenders with elders.

This camp and another one may be used also as a retreat for adult offenders wanting to turn their life around.

The Court goes to this village one week every 3 months and schedules also, once or twice a year, a special session of one week, if we come to the conclusion that we are too far behind in our cases. 2 weeks before the session of the Court, a copy of the docket is sent to the President. He calls a meeting of his members, studies the docket, and discusses about the individuals whose names appear on the docket.

It may happen then, that an accused goes to see the committee and requires some help, telling the members that he would plead guilty to the charge. They listen to him, judge if he is sincere or not when he tells them that he is contrite and wants to change his life around. Amongst themselves, they may form an opinion, recalled the accused, make him suggestions and take necessary steps to help him, as to open the door for a future therapy about drugs and/or alcohol.

No promise of any kind is made to him regarding the sentence, but they can advise him that they may assist him in Court, telling the Judge their finding and opinion. They may suggest various options to the Court, i.e., adjourn at the next session, so that he can go in therapy, or pay back the damages, if it was a case where damages to property is involved.

They understand that the Judge cannot be bound by their suggestions. This was explained by the Judge and the Crown Prosecutor at the 2 first meetings and I must say that I have never felt any hostile feeling on their part when I could not accept their proposal. However, it practically never happens as their suggestions are generally reasonable and in tune with the actual case.

On the other hand, I am conscious that if I don't generally follow the suggestions of the committee, there will not be any more suggestions and the Committee will become useless.

If for a particular reason, I don't follow their suggestions, I will explicitly explain the reasons that guide me. This, I have promised them.

We have explained to them intensively the conflict of interest. I have sentenced to a detention term the nephew of the President of the committee. It was a case of drug trafficking and I had explained previously In other cases, that it was of great importance not to tolerate drugs in their community as it was one of the main causes of their problems. The President of the committee stood and said that he understood and congratulated me for doing so. It happened also that I have sentenced the brother of one of the members of the committee.

When the Court arrives in the community, many accused, accompanied by their lawyer, may meet the committee, requesting help. In some instances, the member may come to the conclusion that the accused is sincere, and via the president may make suggestions to the Court.

I have seen, in other instances, that the president or another member of the committee was reluctant to affirm surely, before the Court, that the accused was in good faith. There was doubt in their mind and I could understand that they preferred not to mingle up with him at that moment.

Let us bear in mind that I have cautioned them not to accept cases which could be too hard for them to dispose of. Such cases, as sexual assault on children, for example, need generally the advice of experts and are out of the range of their possibilities.

For a few years, I have not imposed any fines to Aboriginal offenders, except those that are compulsory by the Law. Instead of fines, I impose them, with their consent, to make donations to various community organisations. For example, the donations vary with the year. At certain moments, the donation will be made to the recreation committee to help young hockey players to buy equipment for the winter season. In some other instances, it will be to keep the “shelter for the victims of family violence” alive. Money has been given to the cadet corps, to the girls guides, to the local community radio station which helps the Court quite often, and also to many other community organisations that are in need of money.

The donations are always paid, even if sometimes, the offenders have to be called and be reminded of their obligations. I have realized that they feel better when they pay a donation instead of a fine. They probably feel that their wrong behaviour could be, in a certain way, forgiven by their fellow citizens. Anyway, in our Northern Aboriginal communities, everything is lacking and I prefer to impose donation that will help the community organisations than to send money to the Government.

The committee makes many suggestions to the Court regarding the community work to be imposed instead of sentences.

Instead of imposing a member of the community work hours, without explaining what will be the community work, I prefer to qualify and explain what would be the community work. It is more real to them and less abstract.

For example, I have imposed on young offenders the obligation to chop and haul a few cords of firewood for an elder widow lady who was in need of it. I sent some other people in the bush to hunt and give the product of their hunting to the band council, in order that it be distributed to poor families of the community. Some others had to paint the cadet local.

I have ordered another one who was particularly gifted in language to translate from English to Naskapi various documents for the members of the justice committee who do not read or speak English. It would be too long to enumerate the duties imposed on offenders. Let us say however that if this kind of sentence was helpful to the members of the community, it benefited more the offenders, as it brings in itself a healing power.

The President or a member of the justice committee generally supervises the community work, is in touch with the person who has to make it and reports to the Court.

I saw them trying to support an accused who was sentenced to a detention term, and saying in front of the Court that they will keep in touch with him while he serves his sentence and that they were waiting to see and help him when he returns to the community. I think that there is no better way to start a rehabilitation.

I see no illegality in acting that way. The President of the Justice Committee is in continual contact with the Probation officer, by phone, of course, because he resides generally over 300 miles away. He reports to him, makes the regular follow-up which, the Probation could not make because of the distance or the costs. Furthermore, as I said before, the say of the President of the Justice Committee is only a recommendation or a suggestion to the Court, as we see very often in Probation reports.

I would like that everyone practices this kind of justice. However, it's not easy to induce Judges and Lawyers who lead our justice system to change their way and follow a path different of the one that has been followed for so long.

The Canadian system is based on Common Law, as in England. Common Law is based on tradition anchored deeply in the European-British system. Things changed eventually, but it takes time. At the moment, some organisations like the Aboriginal Justice Learning Network constitute a vehicle for the development, evaluation, communication and education to various members of the justice system in order to bring back to the Aboriginals this restorative justice process that is consistent with their values and tradition.

Wanting to spread those values, the AJLN people held some 10 work sessions all over Canada, during the last 2 years. I had the privilege to be a guest speaker at a number of those sessions. In Vancouver, I addressed defence attorneys, suggesting they be more inventive in their recommendations of sentencing. In Winnipeg, I spoke to Crown prosecutors, inciting them to be more lenient sometimes, and to consider that the detention is not a panacea to all crimes, that sometimes there is place for rebuilding the life of an offender.

In Montreal, I spoke to Judges sitting in Aboriginal communities, explaining that they may be, sometimes, too professional, and that they may look also to new avenues, particularly, in the sentencing process.

In Calgary and Quebec City, I congratulated Police Officers for their new positive approach in Aboriginal communities of the North.

At the invitation of Mr. Ovide Mercredi, I have addressed a meeting of First Nations Peoples, urging them to request firmly if necessary, more understanding from our Courts. To Aboriginal women, I told them that they could denounce before our Courts the abuses they have suffered and they still suffer.

I hope that the message to all those participants went through. We begin to see some changes and an organisation like the AJLN should receive credit for those changes. The AJLN is still alive, is a good tool and should continue its work.

WHAT IS THE REALISTIC RESULT OF THIS WAY OF PROCEEDING:

We feel now a difference in various communities. In Kawawachikamach, for example, a year ago, the officer in charge of Quebec Provincial Police, wrote me that he saw a change, especially about violence. When he compared the year of 95 and 96, he saw a general decrease of criminality of 26% and a decrease of violence and assault of 53%. He attributes in part this situation to the attitude taken by our Court in applying a certain community justice. The report of this year shows another curve in crime. Assaults and mischiefs are down by 5 and 42%, breach of probation and undertaking by 25%. In general, this year, the criminality is down by 10% compared to last year. If we consider that in the previous year, the criminality in general was down by 26%, and now, by an additional 10% for last year, I may think that the trend continues and it is the result of the efforts of everyone who feels that community justice and alternative sentencing pays, not in the future, but immediately.

I have had many discussions with the Department of Justice representatives. Now, our government realizes that the creation of a justice committee in each community is a good thing and favors it. We are now walking in new avenues. I hope that this road will lead us to a “Justice à la Carte” especially fit for the Aboriginals who need it.

Thank you.