Instrumentalizing the Expressive: Transplanting Sentencing Circles into the Canadian Criminal Trial

48 Pages Posted: 14 Aug 2016 Last revised: 23 Aug 2016

See all articles by Toby S. Goldbach

Toby S. Goldbach

University of British Columbia, Allard School of Law

Date Written: 2015

Abstract

This Article examines reforms to criminal sentencing procedures in Canada, focusing on Aboriginal healing circles, which were incorporated as “sentencing circles” into the criminal trial. Using the lens of comparative law and legal transplants, this Article recounts the period of sentencing reform in Canada in the 1990s, when scholars, practitioners, and activists inquired into Aboriginal confrontation with the criminal justice system by comparing Euro-Canadian and Aboriginal justice values and principles. As a way to bridge the gap between vastly differing worldviews and approaches to justice, judges and Aboriginal justice advocates transplanted sentencing circles into the sentencing phase of the criminal trial. This Article presents original data compiled from a review of all published decisions in Canada that mention the term sentencing circle. It reviews judicial treatment of requests for sentencing circles, and tracks sentencing decisions once a circle was held. Additionally, this Article uses sentencing circles as a point of entry into conversations about legal instrumentalism in law reform and legal transplants. It argues that the progress of these reforms points to larger questions about culture and what it currently means to use law as a tool for social change.

Keywords: Sentencing, Aboriginal Law, Legal Transplants, Law Reform, Criminal Justice, Alternative Dispute Resolution

JEL Classification: K14

Suggested Citation

Goldbach, Toby Susan, Instrumentalizing the Expressive: Transplanting Sentencing Circles into the Canadian Criminal Trial (2015). Transnational Law & Contemporary Problems, Vol. 25, 2015, Cornell Legal Studies Research Paper No. 16-32, Available at SSRN: https://ssrn.com/abstract=2817611

Toby Susan Goldbach (Contact Author)

University of British Columbia, Allard School of Law ( email )

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The University of British Columbia
Vancouver, British Columbia V6T 1Z1
Canada
6048271891 (Phone)

HOME PAGE: http://allard.ubc.ca/about-us/our-people/toby-goldbach

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