ABORIGINAL LEGAL SERVICES OF TORONTO’S

COMMUNITY COUNCIL PROGRAM

The Community Council is a project that allows the Aboriginal community of Toronto to take a measure of control over the manner that the criminal justice system deals with Aboriginal offenders. It is a variation on the diversion concept in use with young offenders. With a diversion, an accused person who admits responsibility with respect to the charge(s) they face does not go to court or get a criminal record for the particular offence(s). Rather they receive an alternative type disposition such as counselling, treatment, restitution etc.

The Community Council Program takes the diversion concept and applies it to adult criminal offenders. The system works as follows: The ALST Criminal Court Workers, the Coordinator or Director approach a Senior Crown Attorney when they see a Aboriginal accused that may be an appropriate candidate for the Community Council. Referrals come from defense/duty counsel, Aboriginal and non-Aboriginal agencies, clients and their families and many other sources. The decision on whether a person can be helped by the Council depends solely on the resources available in the community - not on any particular characteristic of the offence.

The Crown reviews the facts of the case and decides whether it is appropriate that the case goes before the Council. Decisions by the Crown are made on a case by case basis but the fact that the accused person might go to jail if convicted will not prevent the matter from being diverted. In fact, individuals who have already been to jail are one of the Council’s target groups and make up most of those diverted.

If the Crown consents to the diversion, the offender is approached and asked if they wish to go before the Council. Since the Council cannot decide guilt or innocence, the accused person must first admit that they are responsible, to some degree, for their charge(s). Before the individual decides whether they wish to go before the Council, they are required to consult with defense/duty counsel. Counsel will explain the Community Council process, including potential dispositions the individual may face at a Council hearing and the penalties for not complying with a Council decision. Counsel will also stress to individuals that if they feel they are not guilty of the offence then they should try for an acquittal in court. If the accused person agrees to go before the Council, the charge(s) against him or her are stayed or withdrawn by the Crown Attorney.

A Council hearing will usually have three people serving. The Council will reach its decision by consensus and only the individuals involved with the offence themselves discuss their cases with the Council. Where the offence involves a victim, every effort is made to encourage victim participation in the hearing.

The role of the Community Council is to begin the healing process necessary to reintegrate the individual into the community. In deciding how best to accomplish this healing, the Council will make a decision requiring the individual to do certain things. Any option, except jail, is available to them in making this decision. Some options include counselling, restitution, community service, treatment suggestions or a combination of the above. If an individual does not comply with the decision of the Council they are required to reappear before the Council to explain their lack of action. In addition, a person who fails to comply with a Council decision is not allowed into the Community Council if they are arrested again. The charges(s) are not relaid if a person does not comply with a Council decision other than in exceptional circumstances. The charge(s) can be brought back by the Crown Attorney if the individual fails to appear for the Council hearing itself.

The concept of the Community Council is not new. This is the way justice was delivered in Aboriginal communities in Central and Eastern Canada for centuries before the arrival of Europeans to North America. It is also the way that disputes continue to be informally resolved in many reserve communities across the country. The idea behind the Community Council Program is that the Aboriginal community best know how to reach Aboriginal offenders. We know that the dominant justice system does nothing but provide a revolving door from the street to the jail and back again for most Aboriginal accused. The program has been operational since March of 1992 and our experience is that the Community Council process is more relevant and meaningful to offenders. It is our hope that the Council can serve to reduce the recidivism rate among Aboriginal offenders.

Aboriginal Legal Services of Toronto administers the Community Council Program, but the ultimate success of the project depends on the support it receives from the Aboriginal community. A Council member is expected to serve at only one hearing a month and the hearing of cases does not require more than one afternoon or evening a month of a person’s time. The responsibility of seeing that Council decisions are complied with is that of ALST’s.

The Community Council also calls upon the resources of Aboriginal social service agencies. To provide offenders with realistic and meaningful dispositions, there must be adequate resources in the community. Resources can range from community service activities to treatment programs for problems such as substance abuse. We recognize that many agencies are already overextended and we do not expect agencies to drop their current clients to attend to the needs of individuals referred by another group. The expansion of the program will always be guided by the resources available in the Aboriginal community.

September 1997