Whatever Happened to Sentencing Circles?  A Chat with Judge Linton Smith

Judge Linton Smith

Linton Smith is a retired Saskatchewan Provincial Court judge. At the beginning of his career he was involved in the development of the Saskatoon Legal Assistance Clinic, funded originally by the federal government. He became its first director (and later, the first provincial director of legal aid.).  The concept was to provide a full range of legal services, and it provided many services to Indigenous people. Linton saw it as part of a partnership that was foreseen in “Treaty 4”[1].  That agreement was a foundational document which committed the Crown and Indigenous Peoples to, among other things, a special relationship, a sort of “justice partnership” which applied to the whole area of ceded land, not just the reserves. 

“We never honoured that”, he said. “These were agreements to share jurisdiction over justice, but all of the court officers were of European descent; all concepts of justice applied in the court were of British common law origin. Court was always held in non-Indigenous communities. The language of the court was always English, occasionally French, but never any of the Indigenous languages. In recent years, some progress has been made in the use of Indigenous language and the employment of Indigenous court officers, but not back then. Never was consideration given to including the highly sophisticated principles of justice which had been developed by indigenous Peoples.”

“The approach at that time was really parallel to the social services systems that led to residential schools and placing kids for adoption outside of their communities and culture. It was white people meaning well, but doing things that were so wrong.” 

When several years later Linton became a provincial court judge, he determined to consult with and, to the extent that the law permitted, to be guided by Indigenous communities, and to respect indigenous concepts of justice, reconciliation and healing, in the court.

Healing circles had been used by Indigenous Peoples for many purposes, and at the time, a judge in one of the northern territories had experimented with sentencing circles. Linton’s first circle was in 1992. “The communities felt that the circles belonged to them, and accordingly I felt that I attended circles; I didn’t hold them.” It was part of sharing jurisdiction with the community.   “At the first ceremony, about a hundred people showed up, They organized an elaborate sweat lodge ceremony and committed to support the recommendation that would come from the circle.” 

Linton was welcomed into Indigenous society. He attended social, religious and spiritual events and ceremonies, including many sweat lodges. He was adopted by an elder of the Peepeekisis Cree nation, and given the name “Wahpiska pieyso”[2].

A judge had authority to take part in the circles without any specific policy direction, and Linton took part, by his estimate, in about 500 circles. When he was invited to testify before the Senate Committee on Aboriginal Peoples in 1999, one of the court staff told him that they had done some research and believed that he had done more circles than anyone else in the world.

Some of the other judges were doing circles as well, and the process started to be seen as a true partnership. It was really aimed at sharing jurisdiction, and not specifically at reducing criminality or recidivism. It was a partnership. But over time, the practice declined. It took extra time and resources. “In the courtroom, I could impose an appropriate sentence in perhaps 20 to 30 minutes in many cases, where a circle could take up to a day, even more on occasion. But we were dealing with some of the most serious moments in a person’s life. I felt it was worth the time.”

“I remember on one occasion, a community called a circle, and after several adjourned sessions, they were not satisfied with the progress being made by a young man. At one point, an elder named Mirvin Bob pulled an old battered feather out of his bag. He asked those present to pass it around while he talked. He then related his own story; how he had been able to get off alcohol and get his life back by turning to the elders for help, and thereafter becoming a valued member of his community. When he finished his story, the feather had made its way around, and with everyone having unconsciously felt it and smoothed it, when it got back to him, he held it up. It was like new again. Pristine. Elder Bob held up the feather and said, ”See, my people. If a few of you gathered together in a circle can do so much for this little feather, imagine what a whole community working together could do for this boy”.  It was pure magic.”

Since Linton retired in 2018, the sentencing circles are few and far between.

Did we learn anything? “I don’t know. Some of the Indigenous intellectuals feel we have missed the boat. If there was an evaluation, it is probably on a shelf in Ottawa somewhere. The Indigenous peoples were not keen on it being evaluated in a European framework.”

How does he feel about the experience? “I feel honoured to have been able to do it. It was very gratifying personally. I felt the love and the welcome of the community in each and every circle I attended. I would love to go back and do some more.”

[1] Treaty 4 was one of a series of numbered treaties; this one established in1874 between Queen Victoria and the Cree and Saulteaux nations, who were living mainly in southern Saskatchewan. 

[2] The spelling is approximate, since the name is in an older version of Cree.

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