Writing the Circle: Judicially Convened Sentencing Circles and the Textual Organization of Criminal Justice

Abstract

Trial court judges who work in remote Northern Canadian Aboriginal communities use judicially convened sentencing circles to gather information and develop sentencing recommendations in some intimate violence cases. Proponents claim that judicially convened sentencing circles are a restorative justice practice that heals the offender, his community, and the survivor of the violence. Proponents also look to sentencing circles as a tool to find a just outcome that minimizes Aboriginal men\u27s incarceration. We use a methodology developed by feminist sociologist Dorothy Smith to consider whether the institutional priorities being established and approved by courts in sentencing circle cases provide adequate protection for Aboriginal women against recurrent intimate violence in their communities. Finding that Aboriginal women\u27s experiences of violence are largely excluded from the realm of institutional concern, we suggest that judicially convened sentencing circles present a deceptively simple solution to the complex and longstanding problem of Aboriginal people\u27s experience with the Canadian criminal justice system. It is therefore important to counter the discourses that claim that judicially convened sentencing circles have the potential to restore Aboriginal communities. This article counters that discourse in two ways: first, by identifying that Aboriginal women\u27s experiences and knowledge are being excluded from the judicial construction of Aboriginal communities in these cases; and second, by reasserting that any solution to the problem of intimate violence must be part of a broader effort to overcome poverty and the legacy of colonialism within Aboriginal communities