Canadian Criminal Sentencing/Procedure/Sentencing Circles

General Principles

A sentencing circle is an added step available in sentencing hearing process that are available to aboriginal offenders. At a point before the sentencing hearing a ceremony is held where the offender meets with the victims of the offences, community representatives, including elders, and members of the justice system, including the crown and defence counsel, sometimes the judge. The offender will be required to listen to each member's views on the offender and offence. The members of the circle will then collectively come to a conclusion as to a fit and proper sentence that will ultimately be considered by the judge sitting in court at a sentencing hearing.

Sentencing circles are given no mention in the Criminal Code. The authority to order a sentencing comes from the judge's power of the sentencing hearing.

The power over sentencing however stays with the judge at all times and can chose to not follow the recommendation of the circle.

Criteria for Permitting a Circle

A judge has discretion in ordering a sentencing circle. The expected criteria for ordering a circle requires:

1. The accused must agree to be referred to the sentencing circle.
2. The accused must have deep roots in the community in which the circle is held and from which the participants are drawn.
3. That there are elders or respected non-political community leaders willing to participate.
4. The victim is willing to participate and has been subjected to no coercion or pressure in so agreeing.
5. The court should try to determine beforehand, as best it can, if the victim is subject to battered spouse syndrome. If she is, then she should have counselling made available to her and be accompanied by a support team in the circle.
6. Disputed facts have been resolved in advance.
7. The case is one in which a court would be willing to take a calculated risk and depart from the usual range of sentencing.

On the second criteria, the judge will consider the evidence before him and must be satisfied that there is a community with the following characteristics:

1. the community is reasonably well defined by reason of the racial origin of its members, their religion or their culture or by geography or some other feature which distinguishes the community from other communities;
2. the community recognizes the accused not only as a member but as one who has the kind of relationship with the community that ought to make him or her feel accountable to it for any criminal wrongdoing;
3. the community supports the accused in his or her difficulty with the law and is prepared to accept the accused as a person who has the capacity, inclination, need and the sincerity to be restored (healed) in his or her relationship with the community and in his or her relationship with the victims of the wrongdoing;
4. the community has sufficient healing or restorative resources to help the accused (and where necessary the other persons affected by the wrongdoing) in the restoration or healing.

Case Digests

• R v McDonald, 2012 SKQB 158 - request denied due to a lack of appropriately defined "community"

See Also

• Canadian Criminal Sentencing/Aboriginal Principles and Factors