Criminal Law Assignment (Law 101): Aboriginal Justice in Canada

This assignment explores the Canadian criminal justice system and its comparison with Aboriginal justice, focusing on their differing goals and effects. The essay analyzes the traditional Aboriginal focus on healing and community restoration versus the Canadian emphasis on punishment and deterrence, examining the compatibility of these approaches. It then delves into the concept of sentencing circles, detailing their process, purpose, eligibility, and involved parties, while also addressing potential issues like power imbalances and the possibility of appeal. Furthermore, the assignment describes various initiatives involving Aboriginal communities in the criminal justice system beyond sentencing circles, such as victim-offender mediation, group conferencing, and community sentencing, highlighting the underlying principles of restorative justice and assessing the success of these community-based efforts. The analysis incorporates legal concepts, case studies, and academic sources to provide a comprehensive overview of the subject matter.

Running head: CRIMINAL LAW
CRIMINAL LAW
Name of the Student:
Name of the University:
Author Note:

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Answer 1:
The Canadian judicial system put emphasis on punishing the offenders by sentencing him
imprisonment. The sentencing procedure of the Canadian system varies widely from that of the
Aboriginals (Lithopoulos & Ruddell, 2016). During sentencing of any criminal offence, a judge
must take in to account whether the accused pleads guilty or is found to be guilty by the judge or
by the jury. When the accused is deemed guilty, judge then considers the crime committed then
he gives sentences depending on various provisions of Criminal Code. The goal of the
Aboriginal justice was to heal the offender as the well the victim by restoring harmony to the
community as held by Rudin in his article ‘Aboriginal peoples and the criminal justice system’
(Rudin, 2016). On the other hand, the Canadian judicial system uses imprisonment to deter
crime. Here lie the differences between the approaches of the judicial systems.
Aboriginal justice system focuses on the reformative theory where the offenders are put
back into the mainstream. The object of the justice system of the Aboriginals is the reformation
which depends on humanistic approach such that when an offender commits any offence, he is
still a human being. Hence an effort must be taken during the incarceration period (Lithopoulos
& Ruddell, 2016). The object of the Aboriginal system of justice is to cause the moral reform of
the offender. While giving punishment, the judge must consider his character, early life style, his
education and the environment and circumstances that make him commit such offence.
On the other hand, the Canadian Justice as said earlier is focused on deterrent theory
mainly. The Canadian judges are over using the incarceration as a mode of punishing the
accused. The problem of this is that imprisonment does not cause the rehabilitation of the
Aboriginal offenders or of non Native offenders. Moreover, incarceration accelerates the making

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more criminals in the society. It is seen that imprisonment does operate as a deterrent but it
makes the offenders angrier and more prone to commit crime than they before being sentenced to
imprisonment. The main problem is that the Parliament has fixed the hands of the judges by
making legislations from which the judges cannot turn away. They are bound by the provisions
enumerated in those legislations. The legislative frame works do not act as guidelines but they
are the rules that need to be followed strictly. The judges have no option of allowing flexibility to
those rules and sections given in the acts. Thus the punishments being offered are strictly on the
basis of provisions enumerated in the Criminal codes of Canada. Any innovation observed by
any judge is regarded to be out of the legislations and are subjected to appeals in the higher
courts. Thus the Canadian justice system follows different approach that that of the Aboriginals
(Lithopoulos & Ruddell, 2016). Apart from imprisonment, the Canadian judicial system also
considers imposing fines. This is another problem of this system which is being faced by the
Aboriginals as they are unable to pay those fines as they are very poor (Lithopoulos & Ruddell,
2016). Thus as seen before in the history of the Aboriginals, these people have very little
involvement with the Canadian justice system. The lack of active participation from their side
together with their negative experiences who had come in contact with the Canadian justice
system have left them estranged.
Answer 2:
A new initiative in the system of Aboriginal justice is the sentencing circles or the circle
sentencing that came into existence approximately since the year 1992 (Morrison, 2016). The
sentencing circles work within the ambit of the criminal justice system and hence they are
controlled by the parameters given by the Canadian criminal code and case laws or appeals,

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taking the position of hearing sentenced by the criminal court when the guilt of the offender is
proved. A sentencing circle can be defined as a process in which an offender belonging to the
Aboriginal society is sentenced by a judge who considers hearing of recommendations from the
fellow members of the community of the Aboriginal offender (Morrison, 2016). Sentencing
circles often occur in the home community of the offender. Victims may or may not take part in
it. Crown and the defence lawyers took part in the sentencing circles.
The sentencing circles interfere in the sentencing procedure under certain conditions.
Usually the facts in dispute are often resolved before these circles occur (Morrison, 2016).
Offences that make minimum punishments of more than 2 years are rarely heard. Only the
offenders who are liable to a suspended sentence or an intermittent sentence or a short term jail
plus probation, are considered in the sentencing circle. Although some cases of sexual assaults
are heard by he circle but serious cases of murder are never heard by circles. In most of the
cases, the offenders must accept the absolute liability of the crime and must be willing to change,
then only they will be eligible for a sentencing circles. Sentencing circles include a voluntary but
limited delegation of judicial power to the community members. These circles can or cannot
include a traditional healing part (Morrison, 2016).
In order a circle to take place, an offender must apply to the court to hold a circle, and the
judge must approve it. They mainly include a multi step process that includes the following;
firstly an application from the offender to take part in the process, then a healing circle for the
victim, then a healing circle for the offender, then the sentencing circle must develop a a
consensual plan on the elements of the plan of sentencing and finally follow up circles to monitor
the progress of the offender. The plan of sentencing may include commitments by the
community and family members and also by the offenders. The goals of these circles include

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promoting the healing of affected parties, providing an opportunity to the offender to make
changes, empowering the victims, community members, family and offenders by giving them a
voice to speak and a responsibility to find constructive resolutions, addressing the causes behind
the criminal behavior, building a sense of community and its power to solve any conflict and
finally promoting and sharing values of a community.
However, there are some problems that have appeared with these sentencing circles
(Morrison, 2016). The first is the issue of imbalance of powers between the offenders and the
victim. In crimes of sexual offences or rape, the victim may not be ready to participate in the
proceedings or may want the offender to face a non circle sentencing. The second problem is that
there lies a probability of the decision of the sentencing circle being overruled in the courts of
appeal (Ferdous, Khan & Dulal 2018). There have been several cases where the Crown
prosecutor held that the decision of the judge in sentencing circle procedure is very lenient and
hence appealed the decision (Goldbach, 2015). In some cases, the appeal succeeded whereas in
some it failed considerably. If overruling of the judgment occurred frequently, then the
provisions of the sentencing circle would fail and there will be unwillingness to continue with
them. Moreover, there lies a main question regarding the application of the sentencing circles in
the urban areas. Many aboriginals have left their native place and move to the cities for work
opportunities. Sue to the huge migration to urban areas, from different Aboriginal nations, it is
difficult to solve the community duty and a peer process of review. Hence it will be difficult to
find Aboriginals to serve the sentencing circles (Lithopoulos & Ruddell, 2016).
All these issues have to be addressed properly, if the sentencing circles are to continue in
future.

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Answer 3:
In this part of the write up, the most common measures made to cause the advancement
of the restorative justice mechanism is being discussed. These are victim offender mediation,
group conferencing and community sentencing including the sentence advisory committee,
accountability committee, the community mediation community and others. This is not an
exhaustive discussion but to find the way by which these processes are said to respond to the
criticizes of the mainstream system and to help the victims, offenders and their communities to
meet their need and to determine how these alternative approaches reflect the principles laid
down in mainstream justice (Bohmert, Duwe & Hipple, 2018).
Victim offender mediation is the most common restorative justice practice but it is argued
that it is not restorative in actual sense as it can have punitive goals and that this process is more
than mediation. Although victim offender mediation is regarded as a descendent of the victim
offender reconciliation programs created in the decade of 1970 in Canada, but now it is a
separate branch to put emphasis on elevated attention to the victims. The best part of this
measure is that it provides a better comprehensive approach to the need of the victims, the
opportunity of the victims and offender to interact with each other and there is a possibility that it
will have a better effect on the accused than the sanctions. It may occur at different stages of the
criminal legal process. To make it successful, both the offenders and victims shall give their free
consent to it and must know and realize the nature of the process.
Group conferencing means the meeting of the offender, victim and the members of the
community and even the arresting police officer. In some cases, the family members of a
juvenile accused are involved whereas in some the conferencing may include members from the
larger community. Although conferencing is regarded as a restorative justice method but the

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original conferences were not based on the principles of restorative justice instead the restorative
justice has amended them or developed them as conferencing. similar to the victim offender
mediation, the group conferencing can be used at various steps in the criminal procedure.
However, there is less emphasis in enforcing of this model as compared to others. This method
focuses on educating and making understand the offender about the harm or loss resulted due to
his act or behavior.
Another one is this respect was the community sentencing that may result into satisfying
justice in the society. They can take various forms, comprising of Community or Youth justice
committees, correction committees, accountability committees, sentencing panels. Whichever
form they take, they must involve elders or citizen volunteers who usually depend on restorative
measures like restitution, mediation, reparation and involvement of the victims. They can also
deal with the social factors that contribute to causing crime.
The main principles behind the system of sentencing alternatives is that in these systems
the offenders are given chances to understand and rectify their wrongdoings instead of going to
jail. The offenders were able to analyze the nature and basis for a healthy, uninterrupted non
criminal lifestyle. All these approaches have the strong potentiality to clear the burden of the
traditional over crowded courts and save both time and money that would be generally spent on
incarceration. They also provide the Aboriginal communities an opportunity to heal and rectify
the offenders and come in close vicinity of the justice system on the basis of true Aboriginal
principles and values.

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References:
Bohmert, M. N., Duwe, G., & Hipple, N. K. (2018). Evaluating restorative justice circles of
support and accountability: can social support overcome structural
barriers?. International journal of offender therapy and comparative criminology, 62(3),
739-758.
Ferdous, S., Khan, R., & Dulal, B. (2018). Application of Restorative Justice Theory in
Aboriginal Criminal Justice Process in Canada: An Analysis.
Goldbach, T. S. (2015). Instrumentalizing the expressive: transplanting sentencing circles into
the Canadian criminal trial. Transnat'l L. & Contemp. Probs., 25, 61.
Lithopoulos, S., & Ruddell, R. (2016). Crime, Criminal Justice, and Aboriginal
Canadians. Criminal Justice in Canada: A Reader.
Morrison, B. (2016). Rights and Restoration in Canada: Reflections on Practice, Law and
Theory. Reconstructing Restorative Justice Philosophy, 197.
Rudin, J. (2016). Aboriginal peoples and the criminal justice system.