JustResearch Issue 15

Programs in Profile

Programs in Profile

The Aboriginal Justice Strategy

Chris Fleming, Aboriginal Justice Directorate

Introduction

It has long been established that Aboriginal people have much more contact with the criminal justice system than other groups. Aboriginal people represent 3.3% of the Canadian population, but make up 18% of total provincial and territorial sentenced admissions. The incarceration rates for Aboriginal people are much higher than the rate for non-Aboriginal persons[45]. In 2004, Aboriginal people were more likely than non-Aboriginal people to have come into contact with police as victims of crime (13% compared to 7%), as witnesses to a crime (11% compared to 6%), or by virtue of being arrested (5% compared to 1%).[46]

Researchers have found that much of the overrepresentation of Aboriginal people in the justice system can be traced to socio-economic conditions and historical factors. A demographic bulge in the 15-24 age range for the Aboriginal population can partially account for higher crime rates as this age cohort is more likely to commit property and violent crime. Also, other socio-economic factors, such as lower rates of educational attainment, lower employment and income, and other health and social issues contribute to Aboriginal people’s overrepresentation in the justice system and play a part in a continuing cycle of overrepresentation.[47]

In order to combat these trends the federal government has initiated a number of programs across the federal justice continuum. One such program - the Aboriginal Justice Strategy - supports Aboriginal communities to establish programs and systems to divert Aboriginal people away from the mainstream justice system and to handle less serious offences (property crimes for example) outside of courts. This is meant to allow for cultural sensitivities and more victim participation in the resolution of offences and allows the entire community to feel ownership of the process, which is meant to heal the community. There is evidence of success in these programs: recidivism in Aboriginal communities has decreased due to AJS programs and participating Aboriginal people have found it to be a worthwhile process.[48]  In addition to this, the AJS has gained eager partners and participants, both provinces and territories, as well as Aboriginal communities.

The Aboriginal Justice Strategy

The Aboriginal Justice Strategy was created in 1991 (originally called the Aboriginal Justice Initiative), to support a range of community-based justice initiatives such as diversion programs, community participation in the sentencing of offenders, and mediation and arbitration mechanisms for civil disputes. The AJS has undergone a series of renewals and expansions, culminating in the recent 2007 Budget announcement to renew the AJS until 2012.

The AJS focuses on strengthening the capacity of Aboriginal communities to reduce victimization, crime and incarceration rates through increased community involvement in the local administration of justice. This increased capacity will contribute to the development of more appropriate responses to Aboriginal over-representation and, over the longer term, reduce the percentage of Aboriginal people coming in contact with the criminal justice system in communities with AJS programs. Furthermore, as more Aboriginal people become involved in justice administration, a greater understanding of Aboriginal needs will evolve and, consequently, contribute to the necessary conditions for sustainable improvements within the mainstream justice system. 

The AJS has four objectives:

The AJS supports two key activities through grants and contributions, namely community-based justice programs and capacity building initiatives.  These activities operate jointly, supporting and complementing one another in meeting the overall objectives of the AJS.

Community-Based Justice Programs

Community-based activities are at the core of the AJS.  Through cost-sharing agreements with provinces and territories, the federal government covers up to 50 percent of contributions made toward Aboriginal community-based justice programs, such as diversion, pre-sentencing options, sentencing circles, family and civil mediation, or other related initiatives. 

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 Peoples, there can be fundamentally different approaches between Aboriginal and non-Aboriginal people on what constitutes justice and how it can be achieved.   Community-based justice programs are seen as a mechanism that allow for different approaches to be expressed institutionally. The value of having Aboriginal offenders participate in community-based justice programs is becoming increasingly recognized. This approach helps to increase a sense of responsibility for one’s actions and gives the individual a greater connection to their community.

Over time, both federal and provincial governments have implemented initiatives to improve the ways in which the mainstream justice system responds to Aboriginal offenders.  Of particular interest is the amendment to the Criminal Code in the sentencing of Aboriginal offenders and its interpretation by the Supreme Court of Canada in the R. vs. Gladue (1999) decision which stressed a remedial approach as something judges should weigh in every case, and especially in cases involving an Aboriginal person. This is meant to bridge the disconnect between Aboriginal peoples’ unique personal and community background and experiences, and the criminal justice system.

Experience, to date, indicates that community-based justice programs also respond to a variety of needs beyond dealing with criminal offences, such as: 

Resolving family conflicts:
In some communities, the ability to offer mediation to deal with family conflicts is a strong incentive to implement community-based justice programs.  Family law cases and child welfare issues can also be resolved through these community programs which aim to support families in the community.
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 by-laws, which deal with matters other than criminal offences.
Crime prevention:
The rationale for implementing community-based justice programs also includes the need to offer help to individuals at risk who have not yet committed a formal offence.  In these cases, community-based justice programs largely act as preventive measures.

Close to 80% of community-based justice programs funded through AJS are diversion oralternative measures programs.  A number of communities also offer a mix of models that may include diversion or alternative measures.

Victims often benefit from their involvement with AJS programs because they are given a voice in the process through things such as healing circles and community sentencing.  In cases where victims have a role in the program, they are provided with an opportunity to face their offenders and for offenders to understand the impact of their actions.  This is especially important for those cases where the victims and offenders live in small or isolated communities. Victims are also provided with a means of better understanding the offenders, the offenders’ background, and the circumstances that led to the offence.

AJS community-based programs have a number of benefits on the communities they serve as well as diverting offenders from the mainstream justice system which include:

In many of the cases examined, regardless of the AJS program model used, the impacts of the program extend beyond the principal participants. The programs help community members have a say about justice in their community by involving them in the process. By sharing their own experiences in a circle, 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.

National Reach

AJS-funded programs are located in every province and territory with approximately 111 alternative measures programs serving about 400 communities. With the enhanced funding for the AJS announced in the 2007 Budget, this number will increase, particularly in the target areas of urban communities, northern regions, and programs that target youth.

Despite this progress, however, community-based justice programs are still only reaching a small portion of Aboriginal offenders.  Many Aboriginal communities have yet to implement these programs, and even where such programs exist, not all Aboriginal offenders who may benefit from these programs are able to 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.   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-violentf fences, which are the type of offences that are typically referred to the community-based justice programs. However, because of the enhanced and expanded funding the AJS received in the 2007 budget, community based programs will reach more Aboriginal communities in the very near future.

Capacity Building

Capacity building components are available to communities that do not yet have community-based programs or communities that run such programs. This component offers support for training activities to address the developmental needs of communities, support the development of new programs, or to support one-time or annual events that build bridges, trust and partnerships between the mainstream justice system and Aboriginal communities. The AJS may cover up to 100 percent of the activities under this component.

Aboriginal communities face a range of challenges in the implementation of their community-based justice programs, including the high level of turnover among the community program staff and mainstream justice personnel (prosecutors, police offices) who refer Aboriginal offenders. Capacity building activities are intended to create awareness of the program at the community level, ensurethat program coordinators have the information and skills to effectively do their work, and that key partners in the main stream justice system understand and support the model.

AJS Results

Evaluations of the AJS have proven its effectiveness thus far. A 2006 Recidivism Study found that community based justice programs are very effective at dealing withAboriginal over-representation within the justice system and that programparticipants were less likely to re-offend than those that went through the mainstream justice system. Similarly, the 2007 Summative Evaluation found that the AJS was creating safer and more stable communities while also being a cost effective alternative to the mainstream justice system. Details of the findings of these studies follow.

Recidivism Study

As noted above, the Department of Justice recently conducted a study to assess the impact of five AJS programs on recidivism (i.e., re-offending).  The study compared the likelihood of re-offending of individuals who participated in an AJS program with that of individuals who were referred to, but did not participate in, an AJS program.  This study provides insights into the impact of AJS programs on clients’ likelihood of re-offending over time.

Although there were many reasons why offenders would be referred to an AJS program but did not participate in that program, the two most common reasons for non-participation were (a) refusal by the Crown, the program, the victim or the offender, or, (b) the offender had moved away prior to program commencement.

Within the study, offenders who participated in an AJS program are referred to throughout this summary as “program participants.”  Offenders who did not participate in an AJS program are referred to as “comparison group members.”   Criminal behaviour is defined in terms of criminal offences that result in convictions (or findings of guilt in the case of young offenders).  In total 3,361 AJS program participants and 885 comparison group members from nine programs across Canada were part of this study.

The background characteristics of offenders in the total sample were as follows:

Program participants and comparison group members tended to be similar in background characteristics but some key differences between the two groups were identified: comparison group members tended to have more prior convictions, to have been more recently referred to an AJS program, and to be slightly older.

The results from the study lend strong support to the assertion that AJS program participation reduces the likelihood of recidivism.  Though more pronounced in the years immediately following program completion, the discrepancy in recidivism scores between program participants and comparison group members continues at every point in time after program completion.  Table 1 shows the estimated recidivism rates for program participants and the comparison group at various points in time after participation in the program[49]. 

Table 1:  AJS Average Recidivism Rates
Time After Program Completion Cumulative Percent Who Have Re-Offended
Participants Comparison Group
6 months 6.12 12.64
1 year 10.85 21.77
2 years 17.57 33.84
3 years 22.32 41.72
4 years 26.73 48.57
5 years 29.86 53.16
6 years 31.25 55.11
7 years 32.20 57.41
8 years 32.24 59.18

As the table shows, recidivism rates are significantly lower among program participants at every point in time after completing the program.  In terms of the extent of the impact, AJS program participants are approximately half as likely to re-offend as are comparison group members.

Case Studies

In 2006, the Department of Justice’s Evaluation Division conducted case studies with 10 communities that have established community-based justice programs through AJS funding and that volunteered to participate in this process.  The selected case studies include a diverse mixture of programs that serve different types of communities (including Inuit, First Nations, Métis, and on- and off-reserve communities). As part of these studies, documents from each of the selected communities were reviewed and five individuals from each of the case study programs were interviewed, including justice coordinators, police officers, victims, offenders, justice committee members, city officials, Elders, prosecutors, probation officers, and defence counsel. A total of 63 individuals were interviewed.

As a part of the case studies, the Department of Justice utilized an innovative participatory method called Photovoice, where program participants from the case study communities took pictures to represent their experiences with community based justice. With this approach, the participants record and reflect on issues that are important to them. Photovoice is based on the premise that community members are the most knowledgeable about the situation in their respective communities and about solutions that work.

Photovoice participants received some training and were instructed to take pictures related to three themes:

Photovoice participants later met to tell the stories of their pictures, which were documented through narrative note taking and digital recording, when possible.

Initially program coordinators expressed some mistrust of conventional evaluation approaches. Participants, however, were open to the photovoice process and the combination of stories and photos helped to illustrate the impacts that AJS programs are having within the communities.  As intended, Photovoice enabled the evaluators to perceive the world from the viewpoint of the community members—those who are most involved and impacted by the community-based justice programs. In addition, the information was shared with participants in an open manner and communities felt more ownership over the results.

Lessons Learned

The AJS evaluation identified a number of key elements that contributed to successful Aboriginal community based justice programs. For instance, the role of the program coordinator was found to be pivotal to the success of the program, and skilled program staff and volunteers equally so. Quality training for program staff was identified to be extremely important to the success of a program as was corporate memory for such things as best practices. It was found that the turnover rates for program coordinators were rather high, and because of this, a process for continuity from one coordinator to another is necessary.

Itwas also found that programs would be more successful if there was ownership of the program demonstrated by the community. If the culture and traditions of thepeople the program was helping were included in the justice process, the betterchance the program would succeed.

The participation of other elements of the justice system was also identified to be critical to the success of the AJS. If judges, police, or prosecutors are unwilling to refer offenders to community programs, there is very little a program can do. A key objective of the AJS is to promote the use of alternative measures to the mainstream justice system to address Aboriginal justice issues.

Cost Comparison between the Mainstream Justice System and an AJS Program

Since every AJS program is unique, it is challenging to establish an average cost per referral.  Recognizing that, the AJS Summative Evaluation reviewed activity reports and the financial information of nine AJS programs.  They included contributions from both the federal and provincial governments, and, in most cases, considered two recent fiscal years of activities and expenditures.  When dividing total program expenditures by the total number of referrals, the average cost per referral was $973.

Turning to the mainstream justice system, the estimated cost of processing a summary offence case through the court system was found by the same evaluation to be 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 relating to summary offence charges.  This provincial average does not reflect the cost of conducting a trial in a remote location, which is considerably higher.

Even without including the higher costs of holding a trial in a remote location, the AJS was still found to be a more cost-effective approach in dealing with offenders than sending them into the mainstream justice system.  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 would be achieving savings.

Conclusion

It has been well documented that the mainstream justice system has historically not responded well to Aboriginal peoples, as evidenced by their disproportionably high victimization and incarceration rates. AJS programs are designed to tailor justice needs to specific Aboriginal communities to address this overrepresentation. By taking cultural factors into consideration when dealing with criminality and by focussing on healing the community and offender rather than punishment, the justice process is seen as more relevant and responsive to Aboriginal communities’ needs.

Furthermore, in a targeted examination, the AJS has proven to be effective in combating recidivism, more so than the mainstream justice system, and has been a very positive experience for the communities that host these programs. And in an environment of increasing pressure to show value for spending, AJS programs have been shown to be more cost-effective than the mainstream justice system.