lace a review system to monitor the performance of the programs and to ensure that the bias of Crown prosecutors are diminished by shining a light on it (a form of accountability measure).
In order to facilitate the implementation of Gladue programs, sentencing circles should become a mandatory consideration if the victim consents, even in the case of allegedly serious offences. A sentencing circle is a process where the offender, the victim(s), elders and members of the community meet to determine the appropriate sentence in the spirit of restorative justice. Mechanism for sentencing circles should be developed in all Aboriginal communities, including urban ones, with necessary modification. When sentencing circles are used, their recommendation should be binding on all parties and on the sentencing judge. Appeal of such sentences should only be available to the defense on the grown of a palpable and overriding error. When sentencing circles are not an option, the government should put in place detailed guidelines for Crown prosecutors and judges on how to proceed in order to properly consider the circumstances of an Aboriginal offender and how this should translate in a sentence, focusing on restorative justice. The guidelines and Gladue programs should be developed with the inputs of national Aboriginal organizations, Aboriginal community leaders, and Aboriginal and sentencing law experts.
B. Reforming Aboriginal Peoples Sentencing Policy
Another way to address the issues of Aboriginal sentencing is to acknowledge that settlers and the colonizer state should not determine how to punish Aboriginal offenders for their crimes. The government should thus attempt to adopt a sentencing policy for Aboriginal people by Aboriginal people. In order to adopt a National Aboriginal Peoples Sentencing Policy, the government should put in place an at large consultation scheme, in the spirit of reconciliation, with Aboriginal communities, Indian Bands’ governments, provincial and territorial governments (especially the Northwest Territory and Nunavut considering their high proportion of Aboriginal people), Aboriginal organizations and any other interested and affected parties. The idea is to create sentencing mechanism and sentences for Aboriginal people by Aboriginal people while respecting victims and Aboriginal culture.
The consultation should be done as openly as possible. It should not start with any propositions or requirements. In order to facilitate consultation, government officials will have to travel around the country to ensure that most communities are visited. Stakeholders should be warned in advance of the consultation to allow for an appropriate time to prepare for it. Funds should be made available on a needs basis to allow all stakeholders to meaningfully participate in the consultation process. The consultation team should be largely composed of Aboriginal people, partly government officials and partly independent experts. At the beginning of a consultation, someone should explain the problem of over incarceration of Aboriginal people and the role of sentencing. The consultation would lead to drafting the policy by the consultation team, Department of Justice and Department of Aboriginal Affairs and Northern Development officials not involved in consultation and academics involved in Aboriginal and Sentencing Law. The draft policy should be distributed to relevant stakeholder for last comments. The final policy should serve as the basis of new processes and sentences for Aboriginal people. The policy should also be approved by representatives of Aboriginal Peoples before coming into force. It is further recommended, in order to maximize resources, that during such consultation other aspect of the criminal justice system and Aboriginal Peoples be explored in order to amass information that could be both useful for the drafting of the policy and the creation of other policies and programs on Aboriginal justice.
C. Aboriginal Sentencing in the Hands of Aboriginal Peoples
The last proposed way to address Aboriginal ove