Sentencing Circle

A sentencing opportunity at which an accused hopes to favourably influence the court passing sentence, by convening a conciliatory pre-sentence meeting between offender and victim.

In R v Rope, the Saskatchewan judge wrote:

"By tradition, sentencing circles usually take place on the Reserve, where members of the Aboriginal offender's community, such as the Chief, Elders, Band Councilors, the victim or his family, police, prosecution and defence gather and then recommend an appropriate sentence. A Judge is not bound by the recommendation, however, such recommendations are certainly persuasive."

Native or Indian communities seek constantly to have their influence and  jurisdiction recognized and are thus amenable to convening sentencing circles. Since the victim is often from the same community, he or she is not likely welcomed to ignore a suggested sentencing circle especially snce such a meeting is an opportunity for the larger community to assert some, albeit subservient, jurisdiction from the regular courts.

Once convened, dispute resolution, apology and forgiveness often become the focus of the negotiations conducted at a sentencing circle; all serving the Native criminal defendant in a way not readily available to other Canadians.

In R v Munson, the Court wrote:

".... there is no provision in the Criminal Code for the use of sentencing circles. They evolved over time from the traditional sentencing hearing process with its wide scope and measure of informality and the need to focus on the rehabilitation of the offender in the determination of a fit and proper sentence. The use of sentencing circles is now well established in Canada as an effective aid in the sentencing process in appropriate cases. Even though virtually all of the sentencing circles held to date involve aboriginal offenders, the law does not restrict the use of sentencing circles only to situations where aboriginals have committed an offence."

In the circumstances, the ready community support of sentencing circles and their "persuasive" conclusions, provides a distinct advantage to Indian or Natives defendants in criminal prosecutions in Canada.

REFERENCES:

• R v Munson 2001 SKQB 530
• R v Rope (1994), 136 Sask. R. 167, published at http://www.canlii.org/en/sk/skqb/doc/1994/1994canlii5072/1994canlii5072.html