Sentencing Circles

• Author: Jonathan Rudin
• Pages: 287-315

287

Sentencing

Circles

8

I. The First Wave ........................................... 289

A. R v Moses ......................................... 289

B. Appellate Courts and Sentencing Circles ................. 293

C. Sentencing Circles and Victims ........................ 297

D. R v Pauchay ........................................ 300

E. Challenges with First Wave Sentencing Circles ............ 305

II. The Second Wave ......................................... 306

A. Challenges with Second Wave Sentencing Circles .......... 310

B. Circle Sentencing (and Other Alternatives) Outside

of Court ........................................... 311

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.

288 Indigenous People and the Criminal Justice System

The use of sentencing circles to assist judges in determining a proper and fit sen-

tence for an Indigenous oender pre-dates R v Gladue.1 The practice began in Yukon,

where Justices Barry Stuart and Heino Lilles relied on community input to help

determine sentences in the small mostly Indigenous communities where they often

sat.2 Using sentencing circles rose to national prominence (at least in legal spheres)

following the 1992 decision of Stuart Terr Ct J in R v Moses.3

This chapter will examine what I call the first and second wave of sentencing circles.

The first wave was ushered in by Moses and featured circles that engaged many members

of the Indigenous and non-Indigenous community in addition to those most directly

aected by the oence. After reviewing the case, the chapter will look at appellate

consideration of sentencing circles; the case of R v Pauchay,4 the last significant first

wave sentencing circle; and some challenges these circles faced. The chapter will then

examine the second wave of sentencing circles, distinguished from the first wave by

the involvement of a smaller cast of characters, and will discuss the challenges facing

those circles. Finally, the chapter will look at the use of sentencing circles, and related

alternative approaches, outside of the court system itself.

At the outset of this discussion, it is important to emphasize that sentencing circles

are not an Indigenous practice; rather, they are a way the court system has chosen to

obtain information from members of the Indigenous community. If an Indigenous

community or nation were given the ability to design its own justice system, very few

would likely say, “What we would like is for the judge to sit with us and listen to what

we have to say and then go away and tell us what the sentence will be.”5

Although many Indigenous communities used circles as a way of resolving dis-

putes, among other purposes,6 prior to contact, those circles had no one sitting in

them and occupying a role similar to that of a judge. While sentencing circles often

arrive at conclusions by consensus, the judge and the judge alone ultimately passes

1 [1999] 1 SCR 688, 1999 CanLII 679 [Gladue]. In many ways, sentencing circles are similar

to Gladue Reports. As we will see in this chapter, the use of sentencing circles and Gladue

Reports are not mutually exclusive—they can be complementary.

2 See Heino Lilles, “Circle Sentencing: Part of the Restorative Justice Continuum” (9 Aug-

ust 2002), online: International Institute for Restorative Practices <https://www.iirp.edu/news/

circle-sentencing-part-of-the-restorative-justice-continuum>.

3 1992 CanLII 12804, 71 CCC (3d) 347 (Y Terr Ct) [Moses].

4 2009 SKPC 4 [Pauchay].

5 See Jonathan Rudin, “Aboriginal Justice and Restorative Justice” in Elizabeth Elliott & Robert

Gordon, eds, New Directions in Restorative Justice: Issues, Practice, Evaluation (London: Willan

Publishing, 2005) at 89-114.

6 For some background, see R v Morin, 1995 CanLII 3999 at paras 84-85, 134 Sask R 120 (CA)

[Morin]; for additional conceptual background, see Kirsten Anker, “Reconciliation in Trans-

lation: Indigenous Legal Traditions and Canada’s Truth and Reconciliation Commission”

(2016) 33 Windsor YB Access Just 15 at 29-31.

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.