Nunavut Justice Issues: An Annotated Bibliography
4. Annotated Bibliography (continued)
Crnkovich, Mary. “A Sentencing Circle”, in Journal of Legal Pluralism and Folk Law, 36, 1996.
This analysis addresses the problems associated with Sentencing Circles, as one of the justice initiatives that Northern communities may adopt, and advances considerations that must be included in developing and implementing them if those problems are to be adequately dealt with. This piece addresses the relationship with the mainstream criminal justice system and issues surrounding community mobilization and/or power dynamics.
General
This is a paper based on the Crnkovich’s observations of the first sentencing circle held in the Nunavik region of Quebec.
Overview
Sentencing circles, started in the Yukon Territory, are described as a community-based justice initiative. They are intended to address the limitations of the circuit court system of justice through incorporating the interests and needs of the community in the administration and delivery of justice. The Inuit Task Force on Justice suggested that such initiatives be utilized in the Nunavik region in order to involve the community and more adequately respond to and address the justice needs of the victim, offender and community. Responding to this, the judge in this particular case ordered a sentencing circle to take place. This was a case where the accused was charged with (and pleaded guilty to) assaulting his wife. This was the accuseds fourth conviction and the accused was on probation when the last assault took place. Crnkovich discusses her observations of the process, focussing on the limitations of sentencing circles, specifically as they relate to female victims of violence. She goes on to outline possible safeguards that can be incorporated into Circles to protect Inuit women who are victims of violence.
Themes
- Circuit courts do not meet the justice needs of the Northern communities.
- Sentencing Circles, as a response, may alleviate some of the problems caused by circuit courts. However, there are certain issues that must be addressed before they are implemented.
Findings
Lack of organization: The event was not organized properly and took place in a haphazard fashion. The Mayor, Judge and Mativik (Nunavik Inuit organization) were under the impression that the others would be organizing the location, informing the community and setting the agenda. As a result, the Circle was unsuccessfully organized and it is observed that while a circle may be in the best interests of the community, if it is not properly organized, it can be of little benefit to anyone (164).
Objectives of the circle not defined for the community: The judge gave no substantial guidance to the community members present to help them understand the role or objectives of the sentencing circle. As a result the community was unaware of how the circle was to operate, why it was chosen instead of a regular court hearing, what their options were in terms of recommendations to the judge, the role that Inuit traditions were expected to play, or what the law considered an appropriate sentence for domestic violence. Further, the role of a sentence, its function as a sanction was not discussed or described to the community.
The roles of participants were confused: The author, in her conversations with the victim, found that she was confused about whether she had to be there and what her role was. The judge added to the confusion by stating that although everyone was equal in the circle, he was not obliged to take their advice. These mixed messages and resulting cynicism may lead to less community participation and motivation.
Language: The issue of interpretation and translation. Although the circle began with a translator who translated the exchanges, partway through another individual took over. He was less diligent, and instead of interpreting and translating, he summarized and gave editorialized versions of the discussion. As a result, unilingual members of the circle were excluded from a full understanding of the exchanges.
Subject matter: The author found that the circle was dominated by an ‘offender-focus’. In other words, the discussion was all about helping the offender. While that is important, the author notes that there was no discussion about the harm suffered by the victim, children and family because of his actions. The author also noticed a shift in the discussion from the abuse being his problem to a discussion of their problem (the wife and husband). This implies a shift in blame and responsibility that involves the victim, something that may be inappropriate.
Power dynamics: The author noted that the circle failed to incorporate an understanding of the power dynamics that exist in abusive relationships, specifically between a man and a woman, wife and husband. In the circle that was observed, the victim did not speak in the circle, the sentence represented the plan submitted to the circle by the husband and the court suggested that the wife attend counseling with the husband. These results make it clear that the power dynamics that occur in abusive relationships were not accounted for by the Circle and the judge.
Lack of community involvement: Because there was no information offered to the community about Sentencing Circles and its goals and there was no care taken to include a representation of the community, the community was unable to fully prepare for and participate in the circle. There was no opportunity for the community to design the circle or offer input into its operation that may better reflect their cultural traditions and needs. The Judge assumed a sentencing circle was the best way to include the community and its cultural traditions in corrections, a decision that should have been made by the community.
Conclusions
The author concludes the following:
- It is essential that the community be involved in planning, developing and implementing new alternatives. If it is not, the goals of the initiative will not be met.
- It is essential that the impact of the crime on victims be included in any alternative or community-based initiative such as a sentencing circle. The interests of the victim(s) have to be represented and the forum must be conducive to victim participation.
- Generally speaking, female victims of violence have special needs and concerns. This is especially true in small, isolated Northern communities. The physical presence of an attacker, combined with a lack adequate protection for victims of violence because they have fewer police forces generally and detachments may be hours away, are issues that must be addressed in the development of community-based initiatives. Also, where there exists strong support for community-based justice, a process that shifts the focus onto the offender, the needs of the victim without special attention, may not be adequately incorporated into the analysis.
- Community-based corrections or alternatives, and justice initiatives generally, must be planned and developed carefully, not thrown together in a haphazard fashion with no regard to the impact that the form, process and outcome of corrections has on communities, victims and offenders.
Recommendations
Safeguards must be incorporated into sentencing circles (and other initiatives) to protect Inuit women who are victims of violence:
- The community must be involved in the development, organization and implementation of a Sentencing Circle. The community must control case screening and offence threshold (the issues/harms that a Sentencing Circle will address). As well, the organization of the Circle, as well as the decision about who sits in a Circle, must come from the community. Finally, the community must be informed about the dynamics of power so they can understand them when they occur in the Circle, as well as how they affect the issues in the Circle.
- If Circles are to deal with wife assault or sexual assault the impact of the act on the victim as well as the interests of the victim must be represented in the Circle.
- The tension between healing the offender and protecting the community’ as very different goals of community-based justice initiatives (such as Sentencing Circles) must be adequately addressed by the community.
- There must also be attention paid to the fact that victims need healing too. The focus should not be only on the offender.
- There must be a realization that such cases as sexual assault and domestic violence are not representative of a shared problem by the wife and husband. Counseling together may not always be a good idea.
- Community-based initiatives in the North must recognize that there exists the potential for discrimination when traditional Inuit customs are incorporated into a community-based justice initiative. This may be the result of modernization and the displacement of many traditional cultural practices. To truly meet the justice needs of the community and have the support of the community, this possibility must be addressed.
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