Crime and the Closing of the Canadian Mind

One of the great perils of Canadian politics – for legislators no less than electors – lies in the necessity of making decisions that impact people we will likely never meet, in situations we will likely never know. Such blindfolded influence is present in all policy areas, but perhaps no more profoundly so than that of criminal justice.

In the construction of criminal prohibitions, we tell each other unambiguous stories: if X is wrong, then it is wrong regardless of place and irrespective of person. In an odd way, this may be a strand of our national cohesiveness, our democratic promise. Redrawing the boundaries of what counts as a crime, of course, is not a major topic of this year’s federal election (the Green Party’s call to legalize marijuana notwithstanding). What is at issue is how we – in each province, every region, from coast to coast to coast – are being asked to change they way we to respond to crimes when they occur.

Our choice in this regard is being couched in clear, alluring terms. Do we want to send a strong message to criminals? (of course). Do we want to stand up for victims? (you bet). Do we want a safer Canada? (Alleluia!). The answers are offered as inexorable: more people must be locked up for more crimes, and for longer. Simple.

Reforms to sentencing legislation, however, affect some Canadians much more than others. And it is not urban gangsters who come to mind, although these are the bogeymen we are being asked to imagine. In the Aboriginal communities where I work, the incidence of violence and substance abuse can be shockingly high, and persists as a grim symptom of cyclical trauma. In these places, victims and offenders are closely related, with sources of suffering and solace that are deeply enmeshed. Here, the cleaving punishment of long imprisonment is often not seen as an appropriate or effective response to wrongdoing, being not resonant with traditions that value relational healing over individual blame. This remains true even as Aboriginal communities have long been subject to the dictates and ideologies of a Canadian justice system that does not much share or seemingly understand such restorative approaches.

To the extent that any meaningful justice gets done in this intercultural environment, it is due largely to the ability of sentencing courts to moderate the law’s retributive ethic with an allowance to local wisdom. This can come by way of the advice of elders and community circles, in-depth investigations into an offender’s life circumstances, or appeals, direct or indirect, from the person(s) harmed by a criminal act. The end result, of course, is most clearly measured in sentences that are somewhat lower than the national ‘average’. But the importance of attempts to narrow the gaps between different traditions, while also attending to the immense needs that crime uncovers, is poorly reflected in mere numbers. The true effectiveness of any system of justice depends, not on its coercive power, but its moral authority. And in many Aboriginal communities, Canada’s legal apparatus has an unenviable record to work against. This is why the Supreme Court of Canada has strongly endorsed alternative responses to the travesty of high crime and incarceration rates in Aboriginal communities.

A roll-out of mandatory sentences would threaten the (small) gains that have been made in making criminal courts more alive to these realities, and may perversely make communities less safe for actual victims. Faced with the certainty of having family members jailed in far-away institutions, and returned, if at all, bearing the burdens of further embitterment, victims and witnesses of violent crimes and drug trafficking will be less inclined to make reports, seek support, and take the stand. At a time when the criminal justice system desperately needs to build confidence among vulnerable persons and communities, who equally need the security of reflective, responsive justice structures, these initiatives will push such possibilities further away.

The architects of this law-and-order agenda were quite obviously not thinking of the small minority of Canadians who live, and have always lived, in the vast majority of this country’s land. When you cast your ballot in this election, perhaps you could spare them a moment’s consideration. Your choice could tip a very important balance.