Source: (2004) British Columbia Court of Appeal. AILR 13. Australian Indigenous Law Reporter. 8(4): 54-58. Downloaded 16 November 2005.

The sentencing hearing was adjourned, to allow the respondent’s aboriginal community to form recommendations as to the desirability of traditional aboriginal alternatives to incarceration. The community held both a Family Violence Conference, and a talking circle. These forums recommended that traditional healing and counselling measures (such as a ‘Polatch’ and a ‘man’s talking and sharing circle’) would be more appropriate than goal, given the systemic nature of spousal abuse in the community. There was evidence that the victim was apprehensive about the sentencing, and the Liard Aboriginal Women’s Society issued a formal objection to the use of sentencing circles given the violent nature of the crime in this case. Despite this, the sentencing judge issued a suspended sentence for all counts and issued a probation order for two years, implementing some community recommendations regarding traditional restorative sentencing. In doing so, the sentencing judge took into account systemic difficulties facing aboriginal people, such as the high numbers of aboriginal persons in custody. He found that, despite some division, the community as a whole had begun a process of positive ‘dialogue’ on domestic violence in response to this case. He expressed concern that removing this offender from the community might bring this dialogue and healing process to a premature end. However, there were significant difficulties in implementing the probation order. The Aboriginal Women’s Society, in protest against the sentence, refused to accept responsibility for supervising the community service order imposed on the respondent as part of his probation. There were broader questions about the community’s capacity to give effect to traditional aboriginal justice and restorative objectives given how recently they had begun to explore these measures (for instance, the community asked that the court clarify the meaning of ‘traditional’ terms used in the probation order, such as ‘Polatch’ and ‘elders’). (excerpt)


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