Aboriginal Justice Strategy, Summative Evaluation

Executive Summary

1. Introduction

In 1991, the federal government launched the Aboriginal Justice Initiative, which supported a range of community-based justice initiatives such as diversion programs, community participation in the sentencing of offenders, and mediation and arbitration mechanisms for civil disputes. Five years later (in 1996), the federal government renewed and expanded the Aboriginal Justice Initiative, which then became the Aboriginal Justice Strategy (AJS). In 2002, the federal government renewed the AJS for a further five years, covering the period from 2002-03 to 2006-07. The Department of Justice conducted a summative evaluation of the current AJS funding and this document constitutes the evaluation's final report.

2. Program description

The AJS is one component of the federal government's response to the well-documented fact that a disproportionate number of Aboriginal people are in conflict with the law. The program pursues three key objectives:

To support the achievement of these program objectives, the AJS focuses on six key activities:

Community-based programs:
Through contribution agreements signed with participating provinces, territories, and Aboriginal communities (as applicable), the federal government covers up to 50 percent of the contribution made toward Aboriginal community-based justice programs, such as diversion, pre-sentencing options, sentencing circles, Justices of the Peace, family and civil mediation, or other related initiatives. The Aboriginal Justice Directorate signs and manages these contribution agreements.
Training and development:
Available to communities that do not yet have community-based programs or communities that run such programs, but require further training and capacity-building, this component offers support for training activities that address the developmental needs of communities, support the development of new programs, or support women's and victims' roles in restorative justice initiatives. The AJS may cover up to 100 percent of the activities under this component. The Aboriginal Justice Directorate signs and manages these contribution agreements.
Self-government capacity building:
This component supports the development of pilot projects and resource material designed to build self-government capacity. It is closely linked to self-government agreements, as it prepares Aboriginal communities to enforce their own Aboriginal laws. The AJS may cover up to 100 percent of the activities under this component. The Aboriginal Justice Directorate signs and manages these contribution agreements.
Policy development and support:
The Aboriginal Justice Directorate, in collaboration with the Aboriginal Law and Strategic Policy group, participates in a number of departmental, interdepartmental and intergovernmental committees and working groups to support a coordinated response to Aboriginal policy and program delivery. The Directorate also conducts research and evaluation activities in support of an effective delivery of community-based activities.
Outreach and Partnerships:
This component was originally known as the Aboriginal Justice Learning Network (AJLN). The AJLN became Outreach and Partnerships in 2005-06. Under this new component, the Aboriginal Justice Directorate carries-out communication and promotional activities on the AJS.
Self-government negotiations support:
A legal counsel with the Department of Justice provides advice to federal negotiators involved in self-government negotiations with the First Nations. This legal counsel provides advice relating specifically to justice chapters whenever such chapters are included in the self-government agreements.

3. Methodology

The methodology used to conduct this evaluation has six main components:

4. Program relevance

The three objectives of the AJS are:

A disproportionate number of Aboriginal people are still in conflict with the law. They are over-represented in correctional facilities, and the rates of crimes and victimization in Aboriginal communities are still well over those found in non-Aboriginal communities. AJS programs represent an alternative to the mainstream justice system that effectively reflects Aboriginal beliefs and values.

Multiple government initiatives, including programs like the AJS and changes to the Criminal Code with respect to sentencing and alternative measures, have contributed to reflecting and including Aboriginal values within the Canadian justice system. Despite this progress, there continues to be fundamental differences between the notion of justice among Aboriginal communities and in the mainstream justice system. These differences may contribute to the problem of over-representation of Aboriginal people in the justice system and as such, it remains important for the AJS, along with other programs and initiatives, to continue to make progress toward attaining this over-arching and longer term AJS goal.

The federal government has repeatedly acknowledged the problems that Aboriginal communities face when it comes to enforcing Aboriginal and non-Aboriginal laws and also to address criminal and non-criminal conflicts, as well as the importance of having Aboriginal communities directly involved in the administration of justice in their communities. In that sense, the AJS is still relevant to federal policy and programs priorities. Furthermore, the program directly supports the federal government's efforts to implement self-government agreements in Aboriginal communities.

5. Design and delivery

5.1. Selection of projects and programs

Under the current AJS funding allocation, federal, provincial and territorial governments have selected few new community-based justice programs. When they did select new projects, respective governments jointly reviewed the existing proposals and reached a joint decision on which new program to fund. They did not issue calls for proposals in order to avoid creating large expectations among the Aboriginal communities. In that sense, the process has proven to be efficient, but restrictive.

Regional coordinators with the Aboriginal Justice Directorate have worked in collaboration with their provincial and territorial counterparts and Aboriginal communities to select training and development initiatives and self-government capacity-building initiatives, in tandem with the department of Indian and Northern Affairs Canada (INAC). Since the vast majority of these projects have served communities that already have community-based justice programs, it appears that the selection process was also largely focussed on continuing to serve these communities, instead of serving the communities that are planning to implement new programs.

5.2. Management and monitoring

Through its regional coordinators and program analysts, the Aboriginal Justice Directorate is particularly involved in the daily management of projects funded through contribution agreements. The only exception to this are projects in the Northwest Territories and Nunavut, where the Aboriginal Justice Directorate has signed flow-through agreements. Both the Aboriginal communities managing AJS programs and their provincial and territorial partners appreciate the support provided by regional coordinators and program analysts.

At this point, tools and procedures for performance measurement vary across regions, particularly as a result of provincial and territorial reporting requirements that also vary among jurisdictions. When combined to the challenges experienced by Aboriginal communities in meeting their reporting requirements, these variations still make it challenging to provide a national picture of what the AJS is supporting and achieving.

Since both the Aboriginal Justice Directorate and the provincial and territorial governments closely monitor (through both formal and informal means) the implementation of the AJS programs, they are in a position to determine whether contribution agreements are carried out as required and no significant concerns have emerged during the consultations. It should be noted that, in the cases of the Northwest Territories and Nunavut, where flow-through agreements have been signed, the territories have primary responsibility for the administration of contribution agreements and shares all relevant program information with the Aboriginal Justice Directorate

5.3. Distribution of roles and responsibilities

The roles and responsibilities among all parties involved are generally well-defined and understood. Federal, provincial and territorial partners do play a complementary role in supporting the implementation of the AJS programs. The fact that the Department of Justice has been funding community-based justice programs for the past 16 years (through the Aboriginal Justice Initiative and the AJS) has allowed partners to gain experience and effectively define their roles.

5.4. Activities carried-out internally within the AJD

In 2006, the Department of Justice realigned the policy development and support functions by assigning them primarily to the Aboriginal Law and Strategic Policy group, as a result of its policy capacity. The ALSP works closely with and collaborates with the Aboriginal Justice Directorate.

At the time of the evaluation, a shift in priorities had largely brought the Outreach and Partnerships component to a halt. While the Aboriginal Justice Directorate had carried out activities in previous years, the current level of resources assigned to this component makes it unlikely that it will achieve any significant outcomes.

The self-government negotiation support is a conventional advisory role that legal counsel within the Department of Justice are expected to fulfill. This program component appears to be effectively delivered.

5.5. Follow-up to the 2005 formative evaluation

The recommendations from the 2005 formative evaluation of the AJS have been partially implemented. Since the formative evaluation report was tabled, the AJS has been largely focussing on maintaining existing programs and preparing the renewal of the program. It has had neither the time nor the resources to implement significant changes to the program. A number of recommendations from the formative evaluation will be considered during the renewal process relating to the AJS.

6. Success

6.1. Program reach

Program reach represents the greatest challenge to the achievement of the AJS's expected outcomes at any large scale. Only a fraction of Aboriginal offenders have access to the AJS programs. While these programs are generally having a positive impact on those individuals who access them, many more Aboriginal offenders, who would benefit from such programs, are sent into the mainstream system, often triggering the negative consequences that have been documented over the years.

6.2. Enforcement of Aboriginal laws

The AJS has a limited role in allowing Aboriginal communities to administer and enforce Aboriginal laws and Band by-laws. It must nonetheless be noted that AJS programs could technically be used to enforce Aboriginal laws and Band by-laws. In this sense, it is important to recognize that the AJS programs are not limited to dealing with Aboriginal individuals who have committed a criminal offence.

6.3. Coordinated approach

There is an expectation that both the Aboriginal Justice Directorate and the Aboriginal Law and Strategic Policy Group will play a leadership role in coordinating activities that relate to the implementation of community-based justice programs across Canada. There is no expectation, however, that these two organizations will coordinate an integrated approach to addressing all issues facing Aboriginal people, and this view is consistent with their established mandate.

Both resource limitations and a relatively high turn over level within the Aboriginal Justice Directorate, particularly at the management level, have limited its ability to fully coordinate provincial, territorial and federal efforts in relation to the implementation of community-based justice programs. Provincial and territorial partners have expressed a desire to have the Directorate play a more active role in that area in the future.

6.4. Impact on mainstream justice personnel

Communities that do have community-based programs generally also benefit from the support of mainstream justice personnel. Where challenges exist, they appear to predominantly result from staff turnover among police officers, prosecutors and community justice workers. While all the groups within the mainstream system generally support the AJS programs, by referring cases and holding a positive view of these types of programs, judges appear to be particularly supportive of them.

6.5. Involvement of victims

Involving victims is fundamentally linked to restorative justice and does reflect the Aboriginal values of healing and caring. Case studies conducted in support of this evaluation illustrate the benefits that victims may achieve by participating in community-based justice programs. Another fundamental principle is for the involvement of the victims to remain voluntary, and, in some communities, the consultations indicate that some victims hesitate to participate in these programs. This is a challenge that justice coordinators in participating communities are likely to face on an ongoing basis.

6.6. Support to self-government negotiations

The legal counsel associated to the AJS has provided ongoing support to self-government negotiators. The legal counsel provides expertise related specifically to the administration of justice chapters within these self-government agreements, and as this negotiation process is likely to continue for some time, so will be the need for this type of support.

6.7. Assuming greater responsibility for the administration of justice

The reach of the AJS programs has largely determined the extent to which Aboriginal people have been able to assume a greater responsibility for the administration of justice. Those communities that have implemented community-based justice programs, particularly diversion programs, have considerably increased their involvement in the administration of justice. Since these programs apply to more than just criminal offences, they have also allowed Aboriginal communities to tackle family conflicts or implement preventative measures. Communities that have signed self-government agreements are also in a position to use the AJS programs to enforce Aboriginal laws that relate to a variety of circumstances other than criminal offences.

Implementing AJS programs does not imply that all Aboriginal individuals who could benefit from such programs will systematically have access to them. Many Aboriginal communities still have a limited capacity to offer community-based justice programs. And many other communities have yet to implement such programs.

6.8. Impact on the overall administration of justice in Canada

Undoubtedly, AJS programs have contributed to a greater inclusion of Aboriginal values in the administration of justice within the participating Aboriginal communities. These programs have also had a generally positive impact on mainstream justice personnel (judges, prosecutors, and police officers) who collaborate in the implementation of these programs by referring Aboriginal offenders or participating in sentencing initiatives.

6.9. Impact on crime rates

Individuals who participate in the AJS programs are more likely to get rehabilitated than those who are sent into the mainstream justice system. The recidivism study conducted in support of this evaluation indicates that offenders who participate in AJS-funded programs are approximately half as likely to re-offend as are offenders who do not participate in these programs.

6.10. Other relevant programs

A number of other programs, such as crime prevention initiatives, First Nations policing, youth justice initiatives, the Aboriginal Court Worker Program, and family violence initiatives, play a complementary role to the AJS programs. The amendments to the Criminal Code on alternative measures and sentencing also contribute to the achievement of the AJS's long-term outcomes.

6.11. Lessons learned

This evaluation points to a number of lessons learned:

7. Cost-effectiveness and alternatives

The level of resources allocated to the AJS's main component—namely the community-based justice program—has slightly increased over the past four years, while the level of resources dedicated to training and development and to Outreach and Partnerships activities has been substantially reduced. The level of funding for the other program component appears to have remained largely constant.

In this context, the extent to which sufficient resources have been allocated to each program component largely depends on the objectives that the AJS is expected to pursue. At this point, the current level of resources could, at best, maintain the set of program activities presently available to participating communities. It will certainly not favour an expansion of the AJS or address the gap in program reach identified in this evaluation.

This evaluation has not identified a different program model for achieving the objectives of the AJS. Allowing Aboriginal communities to administer community-based justice programs represents a cost-effective alternative to the mainstream justice system, and it supports the broader self-government objectives that both the federal government and Aboriginal communities are pursuing.