Restorative Justice Practices for Aboriginal Offenders: Developing an Expectation-Led Definition for Reform

• Author: Meagan Berlin
• Position: Wrote this paper for the course Aboriginal Law at Queen's University's Faculty of Law in the second year of her JD program
• Pages: 3-20

APPEAL VOLUME 21

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ARTICLE

RESTORATIVE JUSTICE PRACTICES FOR

ABORIGINAL OFFENDERS: DEVELOPING

ANEXPECTATIONLED DEFINITION

FORREFORM

Meagan Berlin*

CITED: (2016) 21 Appeal 3

INTRODUCTION

Anyone in the justice sy stem knows that lady just ice is not blind in the

case of Aborigin al people. She has one eye open. She has one eye open for

us and dispense s justice unevenly and of ten very harsh ly. Her garment is

rent. She does not give us equality. She gives us subjugat ion. She makes us

second-class citiz ens in our own land.1

— Chief Alla n Ross, Norway House, Cree Nation

Restorative Justice (“RJ”) pract ices for Aborigina l oenders within the C anadian

criminal just ice system have made a valiant attempt at add ressing the ‘harsh and uneven’

distribution of justice by ta rgeting the al arming2 over-incarcer ation of Aboriginal

peoples.3 However, RJ practices a re not suciently used, and in s ome cases, are

implemented inappropriately. Restorative Justice sits in a limbo bet ween overwhelmin g

theoretical support a nd disappointingly inc onsistent practical implementation. ere

* Meagan Berlin wrote this pap er for the courseAboriginal Lawat Queen’s Universit y’s Faculty

ofLaw in the second year of her JD p rogram. Meagan would like to thank Profess or Hugo

Choquette for his assist ance and research guidance. She wishes to than k various sta of the

Edmonton Institution for Women for their informative contributions and to the Four Directions

Aboriginal Student Centre at Queen’s University for facilitating various informative conversations.

1 Aboriginal Justice Inquiry of Manitoba , Report of the Aboriginal Justice Inquir y of Manitoba, Vol 1:

The Justice System and Aboriginal People (Winnipeg: Aboriginal Justice Inquiry, 1991) at 6 [AJIM].

Quoted in Royal Commission on Ab original Peoples (RCAP), Bridging the Cultural Div ide: A report

on Aboriginal People and the Criminal Justice in Canada (Ottawa: Minister of Supply and Services

Canada, 1996) [RCAP] at 2.

2 A current statistic referenced by Valerie Gow, acti ng Manager of Restorative Justice Pro grams

of the Edmonton Institution fo r Women (“EIFW”), a federal ins titution of Correctional Ser vice

Canada. Gow provides a glimp se into the reality and imminence of this con cern, stating “with

respect to women’s correc tions, sadly, it has continued to blossom, even th ough there is

consideration of the Gladue facto rs and Bill C-41. Over-representation is growing at a steady pace

in the prairie provinces. Th e maximum security unit of the EI FW has been hovering at a rate of

100% Aboriginal oender s or just below for two years now.” Intervie w of Valerie Gow by Meagan

Berlin (23 March 2015).

3 A denition of over-incarceration by Dickson -Gilmore and La Prairie succin ctly outlines the

issues: “when the propor tion of members of a particu lar group found in a given institutional

setting, such as the corre ctional system, dispropor tionately exceeds that group’s share of

the overall population.” Jane D ickson-Gilmore & Caro l La Prairie, Will the Circle Be Unbroken?

Aboriginal Communities, Restorative Justice, and the Challenges of Conict and Change (Toronto:

University of Toronto Press, 2005) at 29 [Dick son-Gilmore].

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exist insuc iencies and—in some cas es—inappropriate forms of RJ for Abor iginal

oenders, their communities , and the victims t hat their crimes impa ct. ere needs to

be a forward push to continue deve loping RJ practices. is pa per proposes a structu ral

denition that captu res a threshold for measurable success or fai lure of RJ practice. is

denition would include the incorporat ion of relevant barriers to succe ssful iterations

of RJ in dierent cases , so as to promote more appropriate use of such practices into

programs that a re practically a nd sustainably sound.

Prior to beginning th is discussion on the stat us of RJ within Ca nada as applied to

Aboriginal pe oples, it is important to note the assu mption that it is built upon: RJ is

inherently good, when viewed rel atively in contrast to punitive me asures prioritizin g

incarceration. Nonetheles s, this assumption is a lso built upon the premise of the Can adian

criminal just ice system being a sy stem that is “perfect, but just needs tweak ing.”4 Ovide

Mercredi, former National Chief of the A ssembly of First Nations, spoke to the frustr ation

of dealing with t he dominant view of assu mption that the crimina l justice system i n

Canada is cha racterized a s such, but that even with RJ mea sures and consideration,

that “as long as we stay in th is criminal ju stice system, the judge s do not have options

outside of the Criminal Code. Even with special rules [as outlined i n Gladue], the jails are

l lin g up.”5  is is an issue of contention in and of itself; this di scussion does not aim to

undermine voices of opposition to this di alogue.

Val Napoleon, noted Indigenous law researcher and L aw Foundation Professor of

Aboriginal Just ice and Governance 6 renes this iss ue to the particu lar context of

restorative justice7 stating that “the rhetoric of restorative justic e usually obscu res forms

of local law.”8 Additionally, she points out the potentially dama ging reasonin g behind

its use for Indigenous law. Napoleon posits that the rea soning for using RJ is not “a

jurisdictional one,” but “explicitly ameliorative,” based on add ressing over-representation

of Aboriginal oenders i n the criminal justice a nd correctional system and the premi se of

this resulting from cultural dierences.9 Napoleon notes that RJ as it stands, e xtending

even to the lingui stic representation of RJ “practices” delegitim izes Indigenous leg al

traditions and law.10 is paper is written w ith hope that the proposed str uctural

denition will enable opport unity for increased legitimacy, political a nd practical space,

and ability for Aborig inal communities to de ne Indigenous law and lega l traditions.

However, it remains that this d iscussion centres on the state of t he criminal just ice

system in Cana da as it stands, a nd the recommended struct ural denition ts w ithin

the current frame work.

I. DEFINITIONAL LIMITATIONS OF RESTORATIVE JUSTICE

AND CONCEPTIONS OF ITS SUCCESS

Restorative Justice is a n evolving concept that ha s been dened var yingly in pract ical

and specic program ming-based terms. e se include a philosophical approac h to

sentencing, and in sociologica l contexts, youth-oriented restorative just ice, gender-specic

4 Ovide Mercredi, “Aboriginal Treaty Rights” (Lect ure delivered at the Faculty of Law, Queen’s

University, 31 March 2015) [unpublished].

5 Ibid.

6 At the University of Victoria Faculty of Law.

7 Val Napoleon, Angela Cameron, Colette A rcand & Dahti Scott, “Where is the L aw in Restorative

Justice?” in Yale D Belanger, ed, Aboriginal Se lf-Government in Canada - Current Trends and Issues

3rd edition (Saskatchewan: Purich Publishing, 2008).

8 Ibid at 4.

9 Val Napoleon & Hadley Friedland, “Indigen ous Legal Traditions: Roots to Renaissance” in M arkus

D Dubber & Tatjana Hörnle, eds, The Ox ford Handbook of Criminal Law (Ox ford: Oxford University

Press, 2014) at 10.

10 Ibid.