A Brief History of Sentencing Circles in Saskatchewan
Indigenous Storytelling Month takes place every February to honor and promote oral storytelling traditions, celebrate First Nations, Métis and Inuit cultures, and promote cross-cultural relationships and understanding.
Storytelling is a foundation for the restorative justice process of sentencing circles. The following is an excerpt from A Matter of Right and Justice: 50 Years of Legal Aid Saskatchewan by Darla Tenold.
In 1992, Claude Fafard was a Provincial Court Judge in La Ronge. The demands of the job were high, resources limited, and he had noticed throughout his 15 years on the bench the punishment-oriented justice system was not working very well. Jails were beyond capacity and the majority of inmates were Indigenous people who were not likely to be rehabilitated serving time in jail. Judge Fafard turned to Judge Barry Stuart, a Yukon territorial judge who’d attempted sentencing circles in Yukon.
Sentencing circles are a modern form of sentencing based on traditional Indigenous forms of justice. Though he did not like the analogy to sentencing circles, Sakej Henderson of the Native Law Centre at the University of Saskatchewan, described traditional Indigenous healing circles as community courts used to address a community member’s bad behaviour with the goal of healing the torn relationship between the offender, the victim and the community.
Judge Fafard was not the only one frustrated with the over incarceration of Indigenous people. Native leaders, lawyers, academics and even police espoused the opinion that society couldn't afford not to try sentencing circles.
Under the leadership of Judge Fafard, the first sentencing circle in Saskatchewan took place in Sandy Bay in July 1992. Early on, SLAC often took the lead in setting up sentencing circles, coordinating with participants and justice officials, and making sure the right people – who, along with the offender, could include victims, family members, community members, lawyers, police and other justice system officials – were present at the circle.
This first sentencing circle was held in the basement of the Sandy Bay Catholic Church and included an inner circle for the main participants, and an outer circle for anyone interested. SLAC staff lawyer, Sidney Robinson, represented the two offenders who’d stolen money that had been raised for a prize purse for a canoe race. Everyone in the inner and outer circles participated. The circle went well and resulted in a probationary outcome for the offenders.
Bria Huculak spent 14 years as a SLAC staff lawyer and had become increasingly doubtful about the ability of criminal courts to prevent re-offending. Offenders often suffered from poverty, addictions and lack of education and, in this context, prison sentences often seemed counter-productive. In the court setting there was little opportunity to hear detailed circumstances of the offender, the victim and the impact of the offender’s actions. And no way to facilitate reparations. When she was appointed a Provincial Court Judge in 1992, she joined Judge Fafard and other judges, including Linton Smith and Ross Moxley, who were appointed Provincial Court Judges in 1979, facilitating sentencing circles in Saskatchewan. At first, participants had to make it up as they went along, learning from their mistakes, but eventually, guidelines and procedures emerged, some set out in court cases. The process became a mixture of victim/offender mediation, traditional Indigenous peace-making circles and democratic discussion.
By 1995, an estimated 150 sentencing circles had been conducted in Saskatchewan, mostly in the north where communities were small and primarily Indigenous. The Lac La Ronge Indian Band had used sentencing circles in several less serious cases. When band member Billy Taylor was convicted of the more serious offences of sexual assault and uttering death threats, the band decided to take the case on as a sentencing circle challenge because the traditional court system was not working. Taylor received one of the more innovative sentencing circle sentences: a one-year banishment to a remote location, followed by three years’ probation. Community and women’s groups expressed outrage that the punishment did not fit the crime. The Crown appealed the sentence. Morin, who, along with Robinson, represented Taylor at the Court of Appeal, explained that in the sentencing circle people discussed the fact that jail was not the answer. It reinforced the cycle of violence, instead of breaking it, by pushing problems aside. Lillian Sanderson, a member of the sentencing circle, explained that traditionally, banishment was one of the highest forms of discipline. Offenders who had served similar sentences had emerged as changed men.
In a unanimous decision, the Court of Appeal upheld the banishment sentence, though one of the judges wrote a highly critical opinion of the sentence. He was of the view that it was not enough and that using a sentencing circle in the case of a “vicious rape” was not appropriate. The case attracted media attention and criticisms of sentencing circles. Some felt they were a “soft touch” but Judge Smith pointed out that the decision to hold a sentencing circle was never taken lightly, they created a lot “emotional turmoil,” and communities were “very exacting of their members” and followed up to make sure rehabilitation was happening. Morin pointed out that sentencing circles were “one step toward giving Native communities more control over crime and punishment issues, something authorities don’t always want to give up.”
Judge Fafard expressed his belief that sentencing circles worked, and that they would be “more effective if the province compensated aboriginal participants for their involvement and provided better follow-up services for victims and offenders.” Judge Smith echoed Judge Fafard’s call for more resources, stating he’d been told there was a real fear in some First Nation communities that sentencing circles would fail, not for a lack of goodwill, but that there was no way communities that were putting significant efforts into organizing circles could continue doing so without adequate resources. Robinson, who participated in sentencing circles as SLAC defence counsel and later as a Provincial Court Judge, found they were generally a positive experience, but he also noted they took a half or full day of court time that wasn’t readily available on a busy, full docket day.
The use of sentencing circles expanded throughout the province in the 2000s, but the frequency of their use declined. Reflecting on the early enthusiasm for them, Judge Huculak noted that they were all community-assisted, nobody was paid and it was a lot of work, leading her to speculate that part of their decline was due to community burn out. Though justice sector costs, such as prosecutions and courtworker programs, were funded by the courts, offenders and communities were mainly responsible for organizing sentencing circles, sometimes with help from community justice or court workers. Costs such as the facility (if it was not a courthouse), transportation, sustenance and elder support are also usually the responsibility of the offender and the community.
Sources for this excerpt found here: A Matter of Right and Justice: 50 Years of Legal Aid Saskatchewan
