A restorative justice remedy is one that places the emphasis on healing the harm done by the offence and rehabilitating the offender to avoid future harms. Such processes are in line with traditional Aboriginal views of justice. In addition to similarity in principle, there are several uniquely Aboriginal elements that can be used in a restorative process.
The core of an Aboriginal restorative process is generally a healing circle, which aims at developing a consensus on how to repair the harmful results of the offence.
A healing circle:
- Will include members of the community including the offender, elders, and often the victim if they agree to participate
- Will discuss the offence and how it has affected the victim and the community and the relationships between these and the offender
- In addition to healing community ties, the circle focuses on the offender and the underlying causes of their offence
- For example, if alcohol or child abuse experiences contributed to the offence, these impact factors will be identified and discussed
The process is intensive and in many ways more difficult than a passive jail sentence since offenders are made to face and accept the harms they have caused. Victims often find the process much more satisfying and empowering than conventional justice procedures as well. They often report feeling less fear and trauma after taking part in a healing circle.
The healing circle often leads to an organic consensus of what steps should be taken by the offender to correct the harms caused by their actions. These could include:
- Specialized counselling or treatment programs targeted at the impact factors that contributed to the offence (alcohol programs, abuse counselling)
- Community work service at the direction of an elder’s counsel
- Potlatch and other traditional remedies specific to the customs of the tribe
- Direct restitution to the victim or the community
- Sometimes unique and creative solutions emerge, such as the offender agreeing to tell the public their story and speak out against the conduct that led to their offence.
- Some general examples are available here.
For more information on the principles and practice of Aboriginal restorative justice, you can order an Aboriginal Restorative Justice CD-ROM through the Legal Services Society website.
A restorative justice process will often be one part of a set of conditions imposed by a court. For example, if an offender agrees to a restorative process, the court could enforce the recommendations of that circle. There could be other stipulations such as strict curfews, restraining orders and others.
Many Aboriginal communities have organizations in place to develop and enact restorative justice processes. If the applicable community (that of the offender or of the victim) does not, a judge still has a duty to try to craft a suitable restorative sentence in line with Aboriginal views of justice if one is appropriate in the circumstances of the offence (Gladue, supra, 84).