Sentencing circles: aboriginal justice and restorative justice.

• Author: Fenwick, Fred R.

This past December, two Saskatoon policemen were convicted by an all white jury of unlawful confinement of a native man that they had driven to the outskirts of Saskatoon and left in the 22 below weather. The convicted men asked that they be sentenced by a sentencing circle instead of by the Judge who presided over the trial.

So what is a sentencing circle? And is it peculiar to aboriginal law?

Maybe the place to start is with what it is not and how it relates to the criminal law system that we are used to (that works so well).

In an age of specialization, we have created a criminal law system that recognizes the harm that crime does to society as a whole and sets up specialized personnel to administer the apprehending of offenders (i.e. the police), figure out just what they have done (i.e. courts and lawyers), and to punish them (jails). The system works smoothly and with little fuss or bother to average citizens, causing you no more bother than the natural gas being delivered to your furnace every minute of the day. The system has a way of making complicated tasks routine.

Even the way that the cases are described legally emphasizes that responsibility for crime has been taken over by the state. A criminal case is described as "Her Majesty versus whoever" and the prosecuting lawyer (an agent of the government) is called the Crown prosecutor. When fines are paid, they are paid to the government

This does have its benefits: it is true that crime is an offence to society as a whole; the system runs without bothering you; and the systematic way that it categorizes crimes ensures a kind of equality.

What this forgets though is that crime is also, and perhaps even primarily, a very personal matter. Some one actual person, after all, actually gets punched in the nose (or much worse) to start the whole thing off, and some one actual person actually did the punching. Often these people are not strangers to each other and will have to live together in some fashion as family, neighbours, or members of the same community in the very near future.

The concept of restorative justice attempts to recognize the personal and interpersonal nature of the crime in an attempt to involve both the victim and the criminal in both healing the very real wounds of the victim and providing a way to restore the criminal to the larger law abiding society. Typically this is done with the offender admitting the crime, being obligated to hear from the victim and other...