Saskatchewan was a pioneer and innovator in criminal justice. Perhaps the most significant change in the criminal justice system since European contact was the introduction of restorative justice, and Saskatchewan judges and communities were among the first in Canada to use the concept; they embraced it with more vigour than anywhere else outside of the Yukon.
The concept of restorative justice is both new and ancient. A form of restorative justice was at the core of many First Nations traditions, but it is very new to the British system of justice. To understand what restorative justice is today, and why it represents such a fundamental change, a quick look at the system brought to Canada by the British is necessary. Under British law, one who breaches the law of the land is considered to have offended against the King or Queen, and a central tenet is that the Crown has the right to punish such behaviour. In contrast, restorative justice gives the victim and the local community a much more central role. It ignores punishment, though not accountability, and seeks to “put things right” between the offender, the victim, and the community. The process tends to purge the anger that perhaps led to the offence and certainly resulted from it, and to begin a healing process.
Restorative justice can take many forms, but sentencing circles are its essence. The ancient process of circle consensus-seeking was first utilized by Judge Barry Stewart in the Yukon; shortly after, in l992, Judge Claude Fafard was inspired by the success of that experiment and presided over Saskatchewan’s first sentencing circle (the first in Canada outside of the Yukon), and Saskatchewan remained in the forefront of its use for many years after. Dean Martin Stewart had been charged in Sandy Bay with assault: as Judge Fafard knew local elders, a circle was organized when the regular docket was finished, involving Stewart, family members, a representative of the police, the Crown Prosecutor, a legal aid defence lawyer, and the victim. Clockwise around the circle, as in every circle since, people discussed what Stewart could do to make amends, how the community could help him change, and what he could do to reconcile with the victim. The discussion progressed, and as in almost every such circle held since, a consensus emerged, which satisfied not just the community representatives, but also the diverse interests of the victim, the accused, the Crown, and the court. In contrast to the formal atmosphere of traditional court, emotions were given a free rein. Highly personal stories were told by many, including elders, who like Stewart had suffered the impact of poverty, overcrowding, community and cultural dislocation, criminal behaviour, but most of all, alcoholism. Their example offered Stewart a way out of his unacceptable lifestyle.
Very quickly, communities all over northern Saskatchewan embraced the idea of sentencing circles. Circles became the norm in the Provincial Court in northern Saskatchewan, and what at first had been a very tentative experiment became a more formalized practice. Guidelines were eventually adopted by the two judges who serviced northern Saskatchewan from La Ronge, and these were ultimately enunciated by Judge Fafard in the Joseyounen case. The Saskatchewan Court of Appeal in the case of R. v. Taylor upheld the notion that in order to have a circle the accused must show a willingness to reform and be part of an identifiable community; the victim (or a surrogate) must be willing to participate, as must traditional elders or respected non-political community leaders. This important decision achieved two things. It made part of Saskatchewan law a sentencing process that purges emotions such as anger, and that reconciles the accused with his own community and the victim. It also demonstrated how innovative the circle process can be: as part of his sentence, Taylor was banished to an uninhabited island.
These cases, and the hundreds of circles that were held in the Saskatchewan Provincial Court throughout Saskatchewan, had a great impact across Canada. They were influential in persuading the Parliament of Canada to enact provisions for the adoption by the Supreme Court of the principles of restorative justice. In no small part due to the work of those small Indigenous communities throughout northern Saskatchewan, restorative justice came to benefit Canadians everywhere.
Ross Moxley