Draft of a letter that may never be read...

It is rarely a bad time to look up from the minutiae of our tasks, to consider how our work informs a bigger picture, and take note of where our choices are driving us. For those of us engaged in the criminal justice system, it is time – long past time – to meaningfully acknowledge that we are far from where we ought to be. The system that we maintain, it must be said, remains deeply antithetical to the traditions, values, and ambitions of those whom it purports to serve. This includes, most acutely, our region’s Anishinaabe people, who make up the vast majority of victims and offenders.

Here in Northwestern Ontario, we are given the privilege, and the challenge, to live and work at a most important intersection of law and culture. We inhabit ground upon which our differences encounter, and, too often, confound each other. Let me try to describe what I mean.

I am a lawyer, invested with a lawyer’s tools, priorities, and analytical mindset. I am sworn to serve my individual clients, to protect their legal rights, to ensure that they are not convicted without due proof, and, if convicted, are sentenced to punishments that are minimally restrictive of their individual liberty. I am taught adversarial methods to achieve these goals. And although I must put my clients’ interests above all others, including those of their families’, communities’, and society in general, I am given comfort in knowing that I’m working within a system that is specifically developed to help us reach towards something called justice. I will not argue that this model is not generally effective, in the context within which it is meant to operate. But it is certain that in this region, in the lives and communities in which these same principles are currently being applied, that they are not performing their much-needed function of facilitating a more peaceful, more just society. Tragically, they may even be working against it.

This is a longstanding problem, and one that is widespread across Canada. It is one that has been recognized at all levels of court, in Parliament, and by provincial and national commissions of inquiry. The Supreme Court of Canada, in its important decision in R v. Gladue, stated clearly that the law must approach its work differently, if it is to have any hope of beneficially responding to the needs, experiences, and perspectives of Aboriginal people or communities. In essence, the Court cautioned, the way we do justice is not just, and requires serious adjustment.

Over ten years have passed since the warning in Gladue was issued, and we must ask how deeply it is being heeded. A number of initiatives have been implemented to try to ameliorate what I will call the ‘justice deficit’ afflicting Aboriginals in this country. Community legal workers bridge some of the cultural gulfs that court processes wedge open. For minor crimes, diversion programs offer restorative alternatives to youth and first-time offenders. Lawyers and judges have been schooled to attend to the background reasons that bring Aboriginal people into conflict with the law, and, sometimes, have the benefit of detailed reports that illuminate these factors in specific cases. On the corrections side, programs have been developed for offenders both in and out of custody that apply traditional values and practices to the modern plagues of domestic and intergenerational violence, substance abuse, and unresolved grief. Each of these developments marks a necessary step, but, on their own or even cumulatively, they offer insufficient progress towards the goal of a meaningfully ‘just’ justice system for Aboriginal people and communities.

More courageous and creative adjustments are needed, and in some parts of the country, they are already being established. This includes the Gladue (Aboriginal Persons) Court in Toronto, supported by dedicated judges, prosecutors, duty counsel, and case workers who together allow for a truly different approach to justice for Aboriginal persons living in Canada’s biggest city. Also in an urban context, BC’s First Nations Court has been established near Vancouver to support Aboriginal persons who wish to take meaningful responsibility for offending behaviour. As in any criminal court, accused persons enter guilty pleas and are sentenced, but instead of an end, this juncture marks the beginning of a collaborative process of justice and healing. Offenders are expected to return to this court regularly, to provide updates on their progress, to respond to the guidance of the judge, and to account for themselves in a forum that promotes a restorative focus on the roots of wrongdoing, and the resources (cultural, social, spiritual, and therapeutic, as well as punitive) best applied to its resolution. Both of these forums have proven to provide a more understandable, inclusive, and above all effective approach to justice for Aboriginal persons.

If initiatives such as these can grow and succeed in Canada’s cities, why cannot similar, or even deeper, truly indigenous adjustments to the justice system take place in areas such as ours, where Aboriginal people and communities are its majority stakeholders, and the scope of the ‘justice deficit’ is most shocking? Certainly, from my perspective, the need for serious change appears obvious. As a lawyer, I am confronted daily with the consequences of a justice system that is not responsive to the aspirations or expectations of my clients, to say nothing of those of victims, families, and communities. I am sick of attending trials in which witnesses are too frightened, ashamed, or uncomfortable to speak their truths. I am, in my conventional role, a hopelessly inadequate spokesperson for people who plead guilty, but who, for whatever reason, never make their own voices heard. It is especially jarring to participate in a circuit court system whose limitations leave it unable to really listen, let alone respond, to the stories of pain, shame, and possibility embedded in every legal case. Some will say that this is not the law’s job; that it is enough for us to provide formal fairness, hollow equality. But, as I believe and as I have been told, the Anishinaabe of this region have different traditions and understandings of justice, ones that do not require people’s rights to be pitted against each other, as the Canadian system’s adversarial framework seems to demand. It is time – long past time – for this system to deeply adjust itself to allow for these yearnings to be nurtured. Or else it must step out of the way.