A gross imbalance in the number of aboriginal people in Ontario jails and recent acknowledgment of discrimination and ill treatment have been major driving forces in the use of alternative solutions to divert people out of the criminal justice system and work toward traditional solutions.
But restorative justice, often in the form of a circle, is also a tool that can be used in a variety of ways in the justice context to help aboriginal communities and their members, says Celina Reitberger, executive director of the Nishnawbe-Aski Legal Services in Thunder Bay.
“There has been a lot of application to many situations,” says Reitberger, who describes the restorative justice circle as an indigenous way of dealing with disharmony in the community.
“The idea is for the person who has done wrong to hear how his or her action has affected others. And to hopefully offer an apology but also to come up with a healing plan, a collaborative healing plan that will make sure that this type of behaviour is not repeated.”
With aboriginal people long overrepresented in the criminal justice system, making up an estimated 10 per cent of adult inmates in Ontario even though they represent a much smaller portion of the population, community-run restorative justice circles are seen as a desirable alternative to criminal prosecution for minor offences.
Instead of focusing on the rules that are broken, the circle examines the harms resulting from the crime and is meant to empower the victim and respond to their needs.
Nishnawbe-Aski Legal Services employs the community accountability conferencing model in 24 First Nations communities in northern Ontario, incorporating the beliefs, values, customs and practices of the community in a non-adversarial process.
The circle, a sort of tribunal, includes the perpetrator and anyone affected, family members, counsellors and elders in the community and is facilitated by a restorative justice worker.
The process is largely focused on discussion, covering what happened to understand the conflict and how to deal with it to come up with a resolution and determine how restitution can be made to the victim.
The need for alternatives was highlighted by the Truth and Reconciliation Commission, the judicial inquiry examining the country’s notorious residential schools system, which acknowledged the need to increase the availability of community-led restorative justice programs.
Two years ago, Ontario’s attorney general created the aboriginal justice division to work toward addressing those needs. And in November, the province announced that a new elders’ council would offer advice to the attorney general to help make the justice system more responsive to the aboriginal population.
In an emailed statement, a Ministry of the Attorney General spokesperson said that as part of its commitments in The Journey Together: Ontario’s Commitment to Reconciliation with Indigenous Peoples, the provincial government is providing funding to enhance restorative justice programming to increase access to pre-charge and post-charge diversion programs and other restorative justice solutions.
In Toronto’s urban setting, Aboriginal Legal Services quickly developed the busiest restorative justice program in the country after it started hearing cases in 1992, says Jonathan Rudin, program director. About 150 people go through the program in a year.
“We take aboriginal people out of the criminal justice system and have them dealt with by members of the aboriginal community,” says Rudin. “For many of them, if they were not diverted, they would be getting some custodial time.”
Its guiding principle is to treat everyone who comes into the program with kindness and respect, which helps to encourage individuals to open up, says Rudin.
That is supported by the members of the council, all aboriginal people, who Rudin says often understand what individuals have gone through such as alcohol and drug abuse, traumas and abuse among family members.
And it is largely driven by a crew of more than 40 volunteers who meet with clients in community council hearings with the support of staff workers.
Consent for the diversion must be obtained from the Crown and can be requested for anyone, but it excludes domestic and sexual assault charges. It concludes with a decision tailored to the needs and abilities of the individual, and the charges are ultimately stayed or withdrawn.
Rudin says the Toronto-based council is unique because it serves an often disconnected urban population and can offer a doorway into a much needed community for them.
Some have drifted away or have been adopted and raised in a non-aboriginal home.
“Many of the people who come to our program are fairly disconnected from the healthy aboriginal community,” he says. “The community council is very much a way of welcoming people into a community that they want to belong to but they don’t really know how to get into it.”
Rudin says studies have found these diversion programs reduce recidivism “by a very measurable factor” and he attributes their success to the ability to connect individuals to communities and offering them a sense of belonging and pride in who they are after a turbulent history documented by the Truth and Reconciliation Commission.
And he points to a series of decisions by the Supreme Court of Canada that found aboriginal people face direct and systemic discrimination in the criminal justice system.
“That system, that aboriginal people are disproportionately going through, is not a system that can very easily deal with aboriginal people because there are a lot of problems with it. So taking people out of the system is a really good first step, and having them meet with the members of the community who understand what they’re doing and having people buy into what they need to do to start to go on a healing path is shown to be effective,” says Rudin.
But there is also some development in the use of sentencing circles in court, as another restorative-type approach, he adds.
Reitberger sees the restorative justice process as having other applications, including the enforcement of bylaws, such as where alcohol is banned in indigenous communities.
“They’re dry communities, but they have no way to enforce these bylaws because the courts will not enforce the bylaws and, therefore, they’re powerless. So we are proposing they use the circle process.
“So if someone is a bootlegger, we bring them into the circle, we let them hear about how their actions are affecting the community and we also talk about what can be done to change this behaviour,” she says.
A “reintegration circle,” she adds, can be part of a healing plan when an individual comes out of custody and back into the community to ensure they get access to the caregivers and support that is necessary to make the individual’s return to the community successful.
Reitberger says restorative justice is here to stay and she’s hoping to build on current successes by adding to the four restorative justice workers currently working in her service area, through federal and provincial funding.
“It’s all about community wellness and healing,” she says when cases are diverted from the criminal process. “It just generally has a positive effect on everybody.”