Aboriginal Justice Strategy, Summative Evaluation
4. Key Findings
4. Key Findings
This section of the report presents evaluation findings as they relate to each AJS program component. It combines information from all lines of evidence that were described in Section 3.
4.1. Community-based programs
Approximately 100 community-based justice programs were in place at the time of the evaluation. This sub-section examines the rationale for implementing these programs, their selection and monitoring, their impact on Aboriginal communities, as well as their cost-effectiveness.
4.1.1. Rationale for community-based justice programs
"Aboriginal justice is a holistic sense of what is right and how to correct things. This picture reminds us that we have our own justice and we need to get back to the ground . The justice program gives our people an opportunity to choose a path that has been laid out by their ancestors, which has been missing for a long time."
Source: Photovoice participant
The rationale for implementing community-based justice programs typically highlights their perceived capacity to address the fact that a disproportionate number of Aboriginal people are in conflict with the law, and that Aboriginal offenders are over-represented in correctional facilities throughout Canada. As noted in sub-section 2.1, studies documenting the shortcomings of the mainstream system in dealing with Aboriginal offenders are accumulating, while little progress is being recorded in shifting of these alarming trends on victimization, offending and incarceration involving Aboriginal people.
The value of having Aboriginal offenders avoid the mainstream justice system altogether and participate instead in community-based justice programs is becoming increasingly recognized. Over time, both federal and provincial governments have implemented initiatives to improve the ways in which the mainstream justice system deals with Aboriginal offenders. Of particular interest is the 1995 amendment to the Criminal Code on the sentencing of Aboriginal offenders and its interpretation by the Supreme Court of Canada in the Gladue decision.[9] These changes are particularly relevant when we consider the fact that, arguably, some Aboriginal offenders and some offences cannot be dealt with by a justice system other than the mainstream one. But it is unlikely that these changes can effectively address the disproportionate numbers of Aboriginal people in conflict with the law, and who are entering or re-entering correctional facilities. Community-based justice programs have emerged as an alternative to the mainstream justice system, allowing Aboriginal communities to address some conflicts in accordance with their own values of caring and healing. As indicated by the Royal Commission on Aboriginal People, there are fundamentally different world views between Aboriginal and non-Aboriginal people on what constitutes justice and how it can be achieved.[10] Community-based justice programs are seen as a mechanism that allows that different world view to express itself institutionally.
Experience, to date, indicates that community-based justice programs also respond to a variety of needs beyond dealing with criminal offences:
- Family conflicts: In some communities, being in a position to offer mediation to deal with family conflicts is a strong incentive to implement community-based justice programs. The format of a number of AJS programs is particularly well suited to deal with family conflicts.
- Implementation of self-government agreements: As Aboriginal communities expand their ability to pass Aboriginal laws in accordance with their self-government agreements, they are increasingly faced with the challenge of establishing strategies to enforce these laws in ways that reflect Aboriginal values. When used to enforce Aboriginal laws, community-based justice programs no longer only relate to criminal offences, but also deal with issues relating to land management, social and health policies, fishing and hunting, or other matters as defined by self-government agreements.
- Enforcement of Aboriginal by-laws: For those communities that have not signed self-government agreements, community-based justice programs can still be implemented to enforce their Aboriginal by-laws, which deal with matters other than criminal offences.
- Community prevention: Finally, the rationale for implementing community-based justice programs also includes the need to offer conflict resolution assistance to individuals and families. In these cases, community-based justice programs largely act as preventive measures.
In sum, the rationale for having community-based justice programs is based on the fact that, in the absence of such programs, Aboriginal offenders are bound to go back into a mainstream justice system that has proven problematic, and other issues tackled through AJS programs may simply remain un-addressed.
4.1.2. Level of activities
Following an initial increase, the number of community-based justice programs supported through AJS has remained largely constant during the past three years. At the end of 2005-06, the AJS was supporting 110 of these programs, which were located in 433 Aboriginal communities (see Table 2). Fluctuations in the number of communities covered by these programs resulted, for the most part, from a one-time initiative delivered in 2003 and 2004. The total amount of program funding committed to community-based justice programs increased by 12% since 2002.
Table 2: Overview of AJS-funded community-based justice programs by fiscal year
The distribution of programs among jurisdictions has also remained largely constant. The one significant change occurred in Nunavut, where the number of programs went from one in 2002-03 to 13 in 2003-04 (see Table 3).
Table 3: Number of programs by jurisdiction by fiscal year
The funding allocation per jurisdiction reflects the number of programs that each province or territory has implemented. Approximately 40 percent of the funding allocated to community-based justice programs is invested in Saskatchewan and British Colombia.
Table 4: Total Committed AJS Funding of Community-based Justice Programs by Jurisdiction
Most community-based justice programs funded through AJS are diversion or alternative measures programs. These types of programs have systematically constituted close to 80 percent of all programs funded (see Table 5). A number of communities also offer a mix of models that may include diversion or alternative measures.
Table 5: Number of programs by program model by fiscal year
4.1.3. Selection of AJS programs
The Aboriginal Justice Directorate selected few new community-based justice programs during the current AJS funding allocation. Since they are considered programs and not projects, these community-based justice initiatives normally remain in place for as long as they meet their funding requirements. In many regions, this means that the AJS funding has sustained programs that had been in place before 2002.
When resources became available due to existing programs folding down, the Aboriginal Justice Directorate, and the respective provincial or territorial government, typically turned to existing proposals to allocate the available funding. They did not issue an open call for proposals in order to avoid creating expectations that could not be met. To this day, Aboriginal communities interested in implementing a community-based justice program can submit proposals throughout the year, but new programs will only be funded when funds become available.
The actual process used to select new projects varied among jurisdictions. The Terms and Conditions that are applicable to contribution agreements signed under the AJS do identify criteria to be considered in reviewing proposals, but they do not specify a specific process to be followed when selecting a new project. While there has been no formal proposal review committee in place, provincial or territorial governments have played a predominant role in selecting new programs. Both the Aboriginal Justice Directorate and the respective provincial or territorial government have reviewed existing proposals and have worked with the community to implement the program.
4.1.4. Monitoring of contribution agreements
Regional coordinators and program analysts with the Aboriginal Justice Directorate, and provincial or territorial government representatives, are involved in the monitoring of community-based justice programs. The monitoring process includes three key components:
- Federal and provincial or territorial representatives jointly conduct site-visits and provide informal and ongoing support to participating communities. Interviews with key informants from federal and provincial or territorial governments indicate that both levels of government are playing complementary roles and are working closely to offer support to communities. While there are variations among regions, regional coordinators with the Aboriginal Justice Directorate tend to focus on supporting communities to ensure an effective implementation of their contribution agreement, whereas provincial or territorial representatives tend to provide support on substantive issues relating to alternative measures or they address specific issues with courts, prosecutors, or police services. Those justice coordinators working in Aboriginal communities who participated in the evaluation survey largely echoed this view. Approximately 77% of those who provided an opinion on whether the Aboriginal Justice Directorate was providing helpful support to address challenges that they were facing during program implementation, indicated that the support was helpful or very helpful. It should be noted that regional coordinators with the Aboriginal Justice Directorate have a more limited involvement in the delivery of programs in the Northwest Territories and Nunavut. In these two jurisdictions, the Aboriginal Justice Directorate has signed “flow-through agreements,” whereby the federal government transfers financial resources to territorial governments with no further role in the implementation of the community-based justice programs.
- Contribution agreements identify the reports that participating communities are expected to submit. The list of these reports includes cash flow statements, interim financial statements, year-end financial statements, and interim and year-end activity reports, and statistical reports. At the time of the evaluation, many participating communities were still facing challenges to meet these reporting requirements. Both the federal and provincial representatives consulted as part of this evaluation acknowledged that communities are making efforts to comply with these requirements, but that challenges remain. The survey of justice coordinators who work in Aboriginal communities confirms that reporting remains difficult and that improving this process is seen as one avenue to improve the delivery of community-based justice programs. Moreover, the format for reporting activities also varies among regions. What constitutes a “case” or a “referral”, or what constitutes a “client” or a “service” is not consistently defined, making national reporting difficult and incomplete. The fact that these challenges remain 16 years after the first community-based justice programs were implemented under the Aboriginal Justice Initiative points to a fundamental gap in organisational capacity.
The 2005 formative evaluation of the AJS made recommendations regarding the implementation of a strategic performance management strategy “that will allow for the collection of relevant performance data”
.[11] It is expected that this issue will be addressed as part of the renewal process of AJS.
Three field audits, both program and financial, are conducted on an annual basis. For the most part, these audits are done on a rotational basis, by jurisdiction, and recommended by coordinators. Regional coordinators are also part of the audit team as they perform a file assessment to ensure that the objectives of the program were delivered and that the terms of the agreement were respected (timelines, deliverables).
4.1.5. Program impact – reach
"Freedom. I found that people who I know who've gone through the court system in the city… it doesn't help them… the exact details don't come out in court. Native people know what we go through. [With the program], we're able to get to the core and get the people on the right track to healing. You can see the impact on people and their families."
Source: Photovoice participant
AJS-funded programs are now located in every province and territory. As indicated in Table 3 (page 19), no program existed in Newfoundland and Labrador until 2003-04. Also, the number of programs in Nunavut expanded considerably (from one program in 2002-03 to 13 programs in 2003-04), contributing to a 25 percent increase in the overall total number of AJS programs over the first four years of the current funding allocation.
Despite this progress, community-based justice programs are still only reaching a small portion of Aboriginal offenders. Many Aboriginal communities have yet to access these community-based justice programs, and even where such programs exist, not all Aboriginal offenders who may benefit from these programs can access them. Crime statistics provide an incomplete, yet, helpful illustration of this important gap in program reach. In 2004-05, AJS programs accepted approximately 7,400 clients.[12] Of this total, approximately 4,500 clients were accepted for non-violent Criminal Code offences. During the same year (2004), a total of 28,600 individuals were charged in Canada for offences committed on-reserve including 17,126 individuals charged with non-violent offences, which are the type of offences that are typically referred to the community-based justice programs.[13]
While incomplete – particularly since they do not include off-reserve offences committed by Aboriginal individuals – these statistics illustrate the extent of the gap that remains in program reach. As long as for every 4,500 Aboriginal individuals, or so, who are directed toward community-based justice programs, there are still well over 17,000 Aboriginal offenders who are sent into the mainstream justice system for non-violent criminal offences, it is unlikely that the AJS will trigger radical shifts in national trends on Aboriginal victimization, offending, and incarceration.
In its Speech from the Throne in 2001, held on the eve of renewing the AJS, the government of Canada made the following commitment:
“It is a tragic reality that too many Aboriginal people are finding themselves in conflict with the law. Canada must take the measures needed to significantly reduce the percentage of Aboriginal people entering the criminal justice system, so that within a generation it is no higher than the Canadian average.”[14]
However successful each individual AJS program proves to be, the current reach of the AJS makes it unlikely that this program will be in a position to contribute, at least to a significant extent, to the achievement of this policy goal.
At a broader level, there are other programs that may well contribute to the achievement of AJS' stated goals and objectives. Crime prevention initiatives, First Nations policing, youth justice initiatives, the Aboriginal Court Workers Program, or family violence initiatives – to name but a few – are all related initiatives that may play a complementary role to AJS programs, but they cannot compensate for the current gaps in program reach.
4.1.6. Program impact on Aboriginal offenders, victims, and communities
Community-based justice programs are reported to have a number of positive impacts on Aboriginal offenders. When appropriate, these programs represent a positive alternative to the mainstream justice system.
The AJS programs allow the rehabilitation process to occur within the community. As reported by an Aboriginal person involved in a community-based justice program, this approach is well suited to smaller communities and better reflects Aboriginal values:
“Court is cold, hard to understand, alienating, and far-removed from the way a small community like ours works. To deal with justice issues is part of a functioning community – one that is willing to take on things that make the community a better place.”[15]
"Now they are back together and trying. I see that their kids are happy. They are growing. I see it as a positive thing for our community. Working with the program they learned to communicate, to share, to cry, and to express themselves. It brings families together. I feel really thankful for the family mediation program. "
Source: Photovoice participant
By incorporating Aboriginal values, these programs focus on healing and caring, instead of punishing and isolating:
“[The program] is spiritual and that is our culture; it's been here for thousands of years and it is what (our ancestors) have always used. Since residential schools, it has been put away but now it is being brought out again. We don't point fingers and we don't lay blame; it is not the person who is bad, it is what they did that was bad (…) that thing can be put aside and we can deal with the person and help them on the right path.”[16]
Central to community-based justice programs is the concept of having offenders acknowledge their wrongdoing and of having victims engaged in the rehabilitation process. As indicated by one victim who participated in a restorative program: “I was impressed with the openness and willingness of the participants [in the circle]. I was able to talk to the offender, could participate more in the process, and had a say in the punishment.”
[17] The very process involved in implementing community-based justice programs ultimately reaches many portions of communities beyond offenders and victims:
“By sharing their own experiences in a circles, for example, other people involved in the resolution of an offence, such as justice committee members, family members, and Elders, are also provided with a means of healing. Furthermore, the programs also help community members have a say about justice in their community.”[18]
These benefits extend to programs that deal with issues other than criminal offences. For instance, family mediation programs allow conflicts to be resolved within the community, and avoid the escalation of these conflicts into criminal offences.
Perhaps the strongest quantitative indicator of program success is the fact that participants in AJS-funded programs are less likely to re-offend compared to offenders who do not participate in these programs.[19] Age, gender, and the number of prior convictions are all factors that are closely associated to recidivism. Once these background characteristics are held constant, a recent study on recidivism done by the Department of Justice lends strong support to the assertion that AJS program participation reduces the likelihood of recidivism, when compared to offenders who were referred to these programs but did not participate in them. These trends in recidivism stand both in the short-term and in the long-term:[20]
| Percentage who re-offended after… | AJS participants | Non-participants |
|---|---|---|
| 6 months | 6% | 13% |
| 4 years | 27% | 49% |
| 8 years | 32% | 59% |
Source: Department of Justice (2006). Evaluation of the Impact of the Aboriginal Justice Strategy on Rates of Re-offending.
By allowing communities to deal with conflicts themselves and in accordance with Aboriginal traditions and values, by offering an alternative process for offenders who are prepared to acknowledge their wrongdoing, and by offering an opportunity for victims to play an active role in the rehabilitation process, community-based justice programs offer a positive alternative to the mainstream justice system and have proven to be more effective in rehabilitating Aboriginal offenders.
4.1.7. Level of support among mainstream justice personnel
The impact of the AJS extends beyond Aboriginal communities and also reaches mainstream justice personnel. Justice coordinators who are located in Aboriginal communities and who participated in the evaluation survey pointed to a strong level of support for community-based justice programs from mainstream justice personnel, particularly from judges:
| Police officers | Crown Attorneys | Judges | |
|---|---|---|---|
| Very supportive | 18% | 34% | 41% |
| Supportive | 62% | 56% | 47% |
| Not supportive | 12% | 12% | 0% |
| Opposed | 0% | 0% | 0% |
| Don't know / no response | 9% | 9% | 12% |
Source: Survey of justice coordinators (n=34) Totals may not sum to 100% due to rounding.
Mainstream justice personnel who responded to the evaluation survey also echoed this view. Not surprisingly, a high level of support among mainstream justice personnel systematically increases the likelihood of program success:
“One thing is certain: when the level of support and involvement of police officers in the program is high, it contributes to the program's effectiveness. (…) [T]his case shows that when the RCMP officers are knowledgeable about the program, supportive, and involved, it contributes to the success of the mediation process. It also has the added benefit for the RCMP of fostering good relations between themselves and the community they serve, and, in this case, with youth.”[21]
The 2005 formative evaluation of the AJS recommended that the Aboriginal Justice Directorate, in collaboration with provincial and territorial partners, work to increase awareness among mainstream justice personnel.[22] While challenges remain, communities that have implemented the AJS programs generally appear to be benefiting from a strong level of support from mainstream justice personnel.
4.1.8. Cost-effectiveness of community-based justice programs
As discussed in this sub-section, while they constitute an incremental cost to the federal government, community-based justice programs represent a cost-effective strategy for dealing with Aboriginal offenders.
In determining the cost-effectiveness of community-based justice programs, it is critically important to take into account a number of factors and methodological limitations:
- Community-based justice programs deal with more than criminal offences. As mentioned throughout this report, these programs address a number of community needs that include family conflicts, preventative interventions, and increased awareness and education about community justice issues. As a result, ending all AJS programs would not trigger the transfer of all AJS program participants into the mainstream justice system. It would rather mean that communities would have one less mechanism to deal with conflicts that are criminal and non-criminal in nature.
- When it comes to criminal offences, programs funded through the AJS represent, by themselves, an alternative to the mainstream justice system. We have identified no alternative to these programs, other than the mainstream system. Therefore, it is assumed that in the absence of such a program, Aboriginal offenders would be either re-directed toward the mainstream justice system or the charge would be dropped altogether. This latter scenario is particularly relevant when we consider the fact that community-based justice programs typically deal with summary offences, which are less serious offences, and are therefore more likely to be dropped.
- While statistics exist on the cost of processing a summary conviction in the mainstream justice system, they are provincial averages that do not take into account the costs of holding a trial in a remote location. The vast majority of AJS programs are located outside of urban areas (on-reserve, in the territories, or in off-reserve rural areas). We must therefore assume that processing a charge involving AJS participants in the mainstream justice system would trigger expenditures that are at a level higher than the provincial average.
- While the federal government pays one-half the cost of AJS programs, the provinces are typically responsible for covering virtually all the costs of processing a summary offence in court (court expenditures, judges, Crown[23] and legal aid). In that sense, should all AJS programs be hypothetically ended, this decision would remove a direct cost to the federal government, and the provinces would need to cover any additional costs triggered by the transfer of AJS participants into the mainstream justice system. Since the number of AJS participants represents approximately one percent of all individuals charged yearly in criminal court in Canada,[24] it is difficult to precisely measure the financial impact of this transfer of participants into the mainstream justice system.
- Other costs, such as policing or costs associated with carrying out sentences, including incarceration, are excluded from the analysis. Police work is typically required both for charges directed toward the mainstream justice system and cases referred to AJS programs, but the extent of this work may vary. Additionally, it is not possible to forecast the extent to which offences for which referrals are made would result in a finding of guilt, or what type of sentence would be imposed (e.g. incarceration or probation). What can be assumed, however, is that the cost of sending an Aboriginal offender into the mainstream system increases considerably when that person is given certain types of sentences, such as incarceration.
- There are a number of societal costs associated with crime, which have been well documented in the literature. These have not been considered as part of this analysis.
Taking these factors into account, we can first consider the cost of referring an Aboriginal offender to an AJS program, which we estimate at approximately $973 per referral. Since every AJS program is unique, it is challenging to establish an average cost per referral. Recognizing that, we reviewed activity reports and the financial information of nine AJS programs located in Ontario, Manitoba, Saskatchewan, and British Colombia. We included contributions from both the federal and provincial governments, and, in most cases, we considered two recent fiscal years of activities and expenditures. When dividing total program expenditures by the total number of referrals, we end up with an average cost of $973 per referral.
Turning now to the mainstream justice system, we can estimate the cost of processing a summary offence case through the court system, which we estimate at approximately $859 per charge. This average cost is based on provincial court expenditures (court expenditures, prosecution costs, and legal aid) from three jurisdictions in Canada (Newfoundland and Labrador, Ontario, and British Colombia) relating to summary offences charges. This provincial average does not reflect the cost of conducting a trial in a remote location, which is considerably higher. As mentioned earlier, many Aboriginal offenders currently referred to AJS programs are living in a remote location. It is possible that having the mainstream justice system deal with these offenders could trigger a need to hold a trial in a remote location, which would cost systematically more than the provincial average of $859.
Even without considering the higher costs of holding a trial in a remote location, the AJS is still a more cost-effective approach to dealing with offenders than is sending them into the mainstream justice system. As illustrated in Figure 3 (next page), while the cost per unit for an AJS referral is higher than the cost per charge in the mainstream justice system, the considerably lower recidivism rate among AJS participants means that, over time, the justice system is achieving savings.
Figure 3, Cost Analysis (4 year period)
For illustrative purposes, we compared the direct costs, over a four-year period, associated with 10 AJS participants to those associated with 10 offenders proceeding through the mainstream justice system. The results of this analysis are based on the following assumptions:
- That the offence of an AJS participant is equivalent to that of an offender committing summary offence.
- That an AJS participant who re-offends will have his or her case brought to the mainstream justice system, and not back to a community-based justice program.
- That AJS participants and comparison group offenders who re-offend will only re-offend once over the four-year period.
- That the cost associated with each AJS participant is the average cost of $973 described in this sub-section.
- That the cost associated with the mainstream justice system is the average cost of $859 described in this sub-section. It does not account for the higher costs of holding a trial in a remote location.
Based on these assumptions, and considering both the recidivism rate and the cost per unit for both the AJS and the mainstream justice system (provincial averages), the net cost saving of the AJS to the justice system is $75 per offender. When considering the costs associated with holding a trial in a remote location, or the costs associated with sentencing options, the net savings would be considerably higher.
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