A Review of Research on Criminal Victimization and First Nations, Métis and Inuit Peoples 1990 to 2001

Part I: Literature Review (continued)

10. Impact of Alternatives to the Criminal Justice System

This section highlights the strengths and weaknesses of Aboriginal alternative justice processes such as circle sentencing in recognizing and promoting victim's interests.[36] For example, we discuss how alternative processes can improve victim's involvement in the criminal process. We also address the literature that is very critical of such processes because of the dangers of re-victimization of victims, particularly women, in the process and the likelihood of reinforcing inequitable power relations within the community. We conclude by discussing how, with certain precautions, alternative processes can be effective in addressing the concerns of Aboriginal women.

Over the years, courts and legislatures have responded to the over-representation of Aboriginal offenders by recognizing the value of Aboriginal approaches to justice and incorporating an understanding of Aboriginal colonization in dealing with such offenders. This recognition has translated into various reforms. One such reform is the enactment of s.718.2(e) of the Criminal Code. This provision states that:

[A]ll available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

This provision directs the courts to take into account Aboriginal culture and the effects of colonization in sentencing Aboriginal offenders (R v. Gladue, 1999). This legislation and subsequent affirmation of Aboriginal approaches to justice by the Supreme Court of Canada in Gladue has given increased legitimacy to "healing" and "reconciliation" approaches to sentencing.

There are important reforms that are being implemented throughout Canada in various Aboriginal communities designed to deliver justice in a culturally relevant and meaningful way. Many Aboriginal communities have implemented various alternative justice initiatives aimed at making justice more meaningful, effective and relevant to the lives of their community members. Clairmont and Linden (1998) reviewed many of these initiatives. These developments are often described as important developments in furthering Aboriginal self-government and as more culturally relevant and effective systems (RCAP, 1996b). Such initiatives are often framed as culturally relevant because they promote a holistic approach to healing the offender. It is an approach that differs fundamentally in theory and worldview from the mainstream retributive system of criminal justice (Dumont, 1993; Koshan, 1998).

10.1 Benefits of Aboriginal Alternative Justice Processes for Victims

Aboriginal justice initiatives have the potential of benefiting both offenders and victims. They are seen as consistent with Aboriginal traditional approaches because they focus on healing as opposed to punishment. In fact, most of the literature in this area is concerned with the over-representation of Aboriginal offenders and views the Aboriginal healing model as a preferred model for long-term rehabilitation of the offender. Ironically, as mentioned above, healing of the victim is almost a secondary thought if mentioned at all in this literature (e.g. Task Force on the Criminal Justice System, 1991, RCAP, 1996b).

However, some alternative Aboriginal justice approaches do have the potential of significantly improving victim participation and input such as in sentencing circles and comprehensive community healing approaches (Griffiths & Belleau, 1995). Although victim criminal justice reforms have advanced considerably since the 1970s (Young, 2001), none have gone as far as Aboriginal alternative justice processes have in providing victims with real and meaningful participation.

Ross (1996) discusses the impact a circle sentencing process had on a young victim and her mother. In this case, the offender robbed the young victim at a gas station. She and her mother attended a circle sentencing of the accused. The victim spoke about how grateful she was to have had the opportunity to voice her feelings directly to the accused so he could know how terrified she was that night. She explained how she no longer had the same sense of security and confidence that she used to have. The mother also explained how the incident affected her. She lived in much greater fear for her daughter's life to the point where she has become overly intrusive in her daughter's affairs. In addition, the victims appreciated listening to the offender himself and others who spoke of him and the kind of person he was. "Until that day, he had been, in their eyes, a one-dimensional monster who had lurched drunkenly out of the night" (p. 174).

Koshan (1998) notes that circle sentencing processes are likely to be more successful in taking into account the victim's perspective than mainstream reforms such as Victim's Bill of Rights reforms or victim impact statements. This is because in a circle process, the victim is a full participant and party to the proceedings, whereas, with Bill of Rights reforms and victim impact statements, the victim, although he/she has a voice, does not have status as a party to the proceedings. The case law dealing with the legal process of circle sentencing also identifies considerable value in having the victim present during the sentencing circle process (R. v. Joseyoumen, 1995). However, courts remain divided over the necessity of having the victim participate in a circle sentencing process. Some courts are prepared to accept alternative means of victims' communication of their concerns and perspectives such as having their statements read into the circle to avoid being present (R. v. Gingell, 1996).

It is important, however, not to generalize in this area by assuming all Aboriginal alternatives are of the same quality as misunderstandings may occur. For example, the review by Wemmers and Canuto (2002) states that circle sentencing provides little victim involvement. They refer to a study by La Prairie (1995b) to support this point. However, they mistakenly labeled what were diversion programs as circle sentencing programs when they made the argument that circle sentencing does little to promote victim participation. However, there are important distinctions between diversion programs and sentencing circles. Although diversion programs can incorporate a circle consensus-decision making format as part of the process, they need not do so. Some diversion programs, for example, involve referring the offender to a council of Elders for determining a solution (RCAP 1996b). Judicial supervised circle sentencing generally endorses the need for the victim to be present in the circle despite some judicial pronouncements to the contrary. The theory behind an inclusive consensus-based circle decision-making format is one that requires victim input and participation (Green, 1998). Thus, it is not the process that is at fault when victims are not present but the management of the process and their failure to include them.

Courchene (1990) has indicated that Aboriginal women prefer the healing approach over the punitive criminal justice system. Such an approach offers a better chance at rehabilitating the offender in the long run. However, as the literature below indicates, this is certainly not a universal perspective of how Aboriginal women feel about restorative justice approaches.

10.2 Criticisms of Aboriginal Alternative Justice Processes for Victims

Not all Aboriginal justice initiatives are created equally. Some run the risk of not addressing the needs of the more vulnerable persons within Aboriginal communities or worse yet aggravating and compromising such persons, particularly women and children who are often the victims of violent crime and sexual abuse. Ross (1996) argues that reforms which call for Aboriginal "community courts", which are essentially a mirror image of the existing process, have been discredited to the extent that they "continue to promise identical failures, the secrets of abuse will remain, and the illness will continue to spread from one generation to the next" (p. 203). Furthermore, where communities adopt circle sentencing as the only aspect of Aboriginal justice reform with the existing criminal process remaining largely in tact and no comprehensive healing plan or a lack of community commitment, the process may merely continue to perpetuate existing patriarchal power imbalances in the community (Drummond, 1997; Crnkovich, 1995b, 1996).

Aboriginal alternative justice processes, including circle sentencing can be nothing more than a replication of existing inequalities within the community (Drummond, 1997). The system can be abused in the case of vulnerable groups within a community such as Aboriginal women.

[I]t has been questioned whether victims are truly free to participate, or must bow to community pressure and the lack of meaningful alternatives. The prevalence of violence against women and children and the internalization of dominant attitudes may test whether healing is a viable option today. (Koshan, 1998, p. 42)

Nahanee (1995b) has maintained that treating Aboriginal women differently by allowing Aboriginal offenders to benefit from a healing approach which inevitably results in more lenient sentences is a violation of their human rights.[37] Moreover, such use of culture as a defence is offensive to Aboriginal women. Koshan (1998) explains:

Aboriginal women perceive as too lenient, and indeed racist, the "culturally sensitive" sentencing of Aboriginal men convicted of crimes of violence. Sentences which allow a violent offender to remain in his community are seen as imposing very serious risks for survivors and potential victims of such crimes, emphasizing rehabilitation at the expense of community safety. Political and judicial support for community sentencing combined with the apathy or outright tolerance of some Aboriginal community leaders and elders towards violence against women may exacerbate these risks. (pp. 40-41)

Similar views were echoed in a study by Stewart and colleagues (2001) for the Aboriginal Women's Action Network. In this study, a number of focus groups were held with Aboriginal women throughout British Columbia. The women were concerned that Aboriginal alternatives should not be "romanticized and removed from the context of our lives as Aboriginal people" (p. 9). "These reforms can and do have a profound impact on women and children's safety particularly in communities that are geographically and socially isolated" (p. 9). Stewart and colleagues also noted that the view held by many women "was that cultural myths that have been taken on by the judiciary, and by extension the larger society, needed to be deconstructed, and that offenders should not be slotted into the role of victims" (p. 62). Some of the women were of the view that restorative justice processes should never be used for sexual abuse.

Furthermore, the study by McGillivray and Comasky (1999) found that most of the Aboriginal women victims in the study supported punishment over diversion and sentencing alternatives. In questioning this perspective further, however, the authors learned that:

Alternatives to the criminal justice system will not be acceptable to victims of intimate violence unless diversion can do what jail is now seen as doing, however, unsuccessfully – punish, visibly, actually, and symbolically, and protect, at least long enough for victims to begin to get their lives back on track. Alternatives will not be acceptable without reliable indication of successful treatment for abusers in programs that guarantee victims' safety for the duration of treatment. Concerns about political interference, lack of fair hearing for the victim, and lack of protection resulted in a generally negative response to the diversion of cases of intimate violence. (pp. 130-131)[38]

Caution must be exercised so that we do not jump too quickly to the assumption that all Aboriginal justice alternatives are problematic because of concerns with perpetuating Aboriginal women's inequality and failing to truly address their needs as victims in male dominated Aboriginal communities. Policy-makers must be aware that there is significant differences in the

quality of various Aboriginal justice alternatives and that there are examples of programs that take seriously into account the perspective of victims in addressing violence against women and children. Section 10.3 below discusses some of these.

10.3 Comprehensive Aboriginal Healing Processes

The Hollow Water healing model has been held out as an example of an alternative Aboriginal justice project that has been successful in addressing family violence and sexual abuse in the community. Although a circle healing process is part of the program, it is only part of a more comprehensive formal process that ensures that all participants are "ready" to participate including the victims who are provided support from a team approach of social, justice and health personnel. The healing plan is also based on a long-term therapeutic approach to treatment also supported by a comprehensive support team of trained experts and Elders (Ross, 1996). There are thirteen independent steps to completing the program at the end of which a cleansing ceremony is conducted (Native Counselling Services of Alberta, 2001).

A cost benefit study of the Hollow Water community healing program has also been recently conducted (Native Counselling Services of Alberta, 2001). Not only did this research study find that the Hollow Water approach saved money for the government (1/3 cost for Manitoba and ½ cost for Federal government over regular justice system expenses) it also found that in the past ten years, the recidivism rate is only 7% compared to the overall recidivism rate of 13%. It has a higher success rate than the mainstream justice system in terms of prevention. More research, however, needs to be undertaken from the perspective of the victim and victim satisfaction with such processes.

An earlier study by Ellis and Beaver (1993) seems to support the finding of Native Counselling Services of Alberta (2001) that Aboriginal approaches to justice are more effective. The objective of the Ellis and Beaver study was to describe the frequency and patterning of wife-abuse and identify its correlates and testing the impact that Aboriginal and mainstream criminal justice interventions have on it. The social context of this study was a First Nation community of approximately 8,000 people. In their conclusion the authors state:

[T]he findings of the study are tentative … and relevant to only minor assaults (but) (t)hey strongly suggest that holistic, re-integrative, healing, community-based informal-indigenous interventions are more effective in reducing repeat wife-assaults than are formal [criminal justice interventions] involving charging/arresting suspects. (p.36)

In addition, Native Counselling Services of Alberta (2001) has found that the Hollow Water community has indirectly benefited from the program in terms of a markedly improved sense of community health and well-being. The authors of the report tracked how health and well-being has improved over the course of the program's implementation.

The link between the implementation of Aboriginal community justice healing programs and increased social cohesion and well-being is not well understood. Although the Simon Fraser review (Cohen, 2002) examines the literature on victimization and social cohesion, it is evident from this review that there is no Aboriginal specific research examining the contribution of Aboriginal justice programs to improving overall social cohesion within communities.

The literature on social cohesion as a concept in addressing social order and harmony in society has evolved significantly in recent years. A useful study by Jenson (1998) as modified by Bernard (1999) has identified a number of dimensions that are useful in measuring the degree to which communities or society as a whole have a healthy sense of social cohesion. It may be useful to explore how Aboriginal justice programs contribute to social cohesion in terms of their impacts on these identified dimensions and how social cohesion impacts on victimization.

Canim Lake is another less known example of a community family violence program, which has been reported as a successful initiative (Warhaft, Palys, & Boyce, 1999). It works very much on the same principles of Hollow Water, that is, it implements a comprehensive holistic healing approach to dealing with offenders and victims. Unlike Hollow Water, however, this program does not require that offenders be charged with a criminal offence before being diverted to the program.

The examples of Hollow Water and Canim Lake illustrate the need to be careful about generalizations regarding the ability of Aboriginal justice alternatives to meet the needs of all community members including Aboriginal women. At the same time, it must be observed that programs such as Hollow Water may not necessarily work in other communities. Parachuting the model into other communities is not going to work unless there is a community process from the ground up that is committed to change. (Warhaft et al, 1999)

Notwithstanding Canim Lake's continuing success, there are dangers to adopting any single model of Aboriginal justice development for all Aboriginal communities. Canim Lake's lengthy and community-driven path to the FVP must be considered by other communities (and government agencies) that may be tempted simply to adopt an existing programme into their communities. It is not the FVP per se that is the strength here, but the painstaking, inclusive processes by which it was generated. (pp. 179-180)

It is argued that it is the quality of the process element that is key and the part that is instrumental in facilitating real change in communities. It may be that processes that enhance collective social cohesion within the community are what have the greatest impact on reducing victimization than the implementation of Aboriginal justice programs per se. As part of this process adequate safeguards need to be in place to ensure victim safety and inclusion in the process.

For example, Crnkovich (1995b) does not argue that circle sentencing processes by themselves are necessarily inappropriate. If certain precautions are taken, the dangers of victimizing women in the process can be minimized. She offers a number of conditions that ought to be present before implementing a circle sentencing process.[39] Further research should be undertaken to explore how such precautions can ensure victims safety and interests.

There is a danger that judges who are seemingly sensitive to Aboriginal cultural differences will render judgments that are intended to be culturally sensitive, but in actual fact legitimize a distorted perspective of Aboriginal culture that benefits offenders at the expense of victims of abuse. For example, a well-intentioned judge might accept the argument that in Inuit culture it is a traditional custom for men to have intercourse with women as young as 14 years of age. The judge who accepts such an argument may be seen as "progressive" by modifying "mainstream" justice sentencing through accepting and legitimating Inuit cultural differences resulting in a less harsher punishment for the offender (Levan, 2001). However, in rendering such a decision, a judge is at the same time devaluing women and in particular Inuit women and could arguably be viewed as discriminatory by treating Inuit women as less worthy of the protections of the justice system (Koshan, 1998). Aboriginal male abusers may be released with lenient sentences, having not dealt with their anger issues that lead to offending in the first place, only to return to re-victimize their wives and children. As LaRocque (1994) argues, unless the offender is "treated" in an intensive healing approach like Hollow Water which involves long-term qualitative counselling/therapy programs in the community, the needs of women victims are not likely to be met (LaRocque, 1994).

Culturally sensitive sentencing processes such as circle sentencing is not enough without ongoing long-term treatment management in an environment where women's victimization is acknowledged and their concerns are addressed in a meaningful way and where their participation in the design and implementation of alternative justice systems is significant. Otherwise, such processes may actually cause greater harm than good (LaRocque, 1994).

The circumstances of the Aboriginal offender and his/her needs have been well researched and presented in the literature (RCAP, 1996a). Yet, there is little information on the impact of such Aboriginal justice initiatives on victims and communities. The review of the literature by Clairmont and Linden (1998) on developing and evaluating justice projects in Aboriginal communities made the important observation that there is minimal data on the intermediate or long term impact for victims of alternative Aboriginal justice programs. There is little evaluation on how alternative programs can overcome domestic victimization.

Further research is necessary to determine the perception in the Aboriginal community about the appropriate process for Aboriginal offenders and the degree to which Aboriginal people actually advocate rehabilitation and healing processes for offenders over punishment and societal protection (imprisonment) processes. It is not at all clear how much support exists for Aboriginal healing processes (Warry, 1998). Nor is it certain that, as has been often claimed, Aboriginal traditional processes were typically restorative in nature as opposed to punishment oriented (Ryan, 1993).

Finally, a comment on Hazelhurst (1995) is valuable. Although process is as important if not more important than the particular justice program adopted by a community, it is still important that such programs be viewed as culturally appropriate and have a social reconstructive thrust to them. Hazelhurst summarizes the knowledge from a collection of essays and concludes that "indigenous solutions appear to be taking a three-pronged approach" (Hazelhurst, 1995, p. xxvii). In addition to the community healing approach describe above, such as Hollow Water, her solutions also include initiatives that recognize the value of customary and traditional processes of resolving disputes within the community and that implement such systems into the present justice system or allow for them to evolve separate and apart from the existing criminal justice system. Thirdly, crime prevention strategies are critical.

Primary prevention helps to divert identified offending groups, particularly youth, away from offending by making life-involving activities more attractive than criminal ones. Popular examples include work-skills and employment training, arts, culture and dance programmes, outdoor recreation and sports, community festivals and social events- all of which enhance the social environments of communities. (Hazelhurst, 1995, p. xxvii)

The potential of reducing crime through community development has garnered the attention of the recent Aboriginal Justice Implementation Commission in its Final Report. The Commission devotes an entire chapter to crime prevention.

Aboriginal people are not only over-represented as offenders in the justice system, they are over-represented as victims. A long-term goal must be to reduce the victimization of Aboriginal people. This means a greater focus on crime prevention measures in Aboriginal communities. Crime prevention requires commitment to improve a wide range of social factors, to focus on the roots of social disorganization rather than on the symptoms of that disorganization, and to nurture and strengthen families, young people, and communities. (Chartrand & Whitecloud, 2001)

However, this crime prevention "solution" is one that has not received much attention in the context of victimization studies. Questions that need to be addressed include: To what extent is the lack of recreational programs and facilities in a community related to victimization? Are communities with significant and varied recreational choices less likely to have high rates of victimization?

  • [36] Circle sentencing is an alternative process from the normal adversarial approach where lawyers representing the Crown and the Offender argue their cases before an independent neutral third party. In the circle process, there are more participants such as the victim, community elders, police, parole officers etc.. who sit in a circle and come to a consensus as to what is the best course of action for dealing with the offender. Typically, the approach tries to further rehabilitation and healing options rather than punishment. For such a process to work, the community must be actively involved. See Green (1998).
  • [37] The concerns expressed by Aboriginal women in the literature regarding the possibility of reinforcing existing inequities by the implementation of Aboriginal justice alternatives parallels a body of literature that has raised similar concerns with respect to alternative dispute resolution generally and mediation processes in particular (Rifkin, 1984; Bailey, 1988; Astor, 1991). We have found no comparisons between this literature and the Aboriginal justice literature. We are of the opinion that it may be useful to undertake a comparative feminist critique between the literature on alternative Aboriginal justice processes and the ADR mediation process generally.
  • [38] The review by Zellerer (1994) of Aboriginal family violence treatment programs for men acknowledged that programs for Aboriginal men who are abusive is a new area and only beginning to be developed. We have not found any other study that examines abuse from an Aboriginal man’s treatment perspective and no studies that have evaluated existing programs.
  • [39] She recommends the following safeguards:
    • Exclusion of domestic violence and sexual assaults
    • Ensure that there is sufficient infrastructure to support community-level alternatives
    • Ensure volunteers are well resourced and avoid volunteers if possible by employment
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