Fundamentally, our understanding of justice is linked to our values – those qualities that, in responding to life’s challenges, matter most, and how their practice is seen as leading to desired outcomes. Consequently, the ‘doing’ of justice – processes, structures, methods – ought to closely reflect and facilitate the values that a given culture (or, in these days, a nation-state) holds dear.
So what, then, are the values that are embedded in the Canadian justice system, and how do they correspond to Anishinaabe values, in particular those enshrined in the Seven Grandfather teachings? Responding to this question helps us understand some of the frustrations and failures that the Canadian state and Nishnawbe-Aski Nation experience vis-à-vis each other in the realm of justice.
In principle, if not always in practice, the Canadian criminal justice system holds as sacred the following seven values:
Equal Treatment
This is the principle that all people must be subject to the same rules, and granted the same rights. Often depicted as a blindfolded woman, this idea of justice makes its demands and promises without favour or discrimination. In a society where the more powerful command more of the law’s resources, however, it is a value that is often difficult to sustain.
Individual Responsibility
Canadian justice places all its burdens and entitlements in the laps of individuals, setting them apart from their families, communities, and cultures. In the criminal system, this is observed mainly in respect of people who have been accused of a defined wrongdoing, in the context of a defined process that begins with an arrest and ends in a verdict (and, if that verdict is guilty, a sentence). It is the job of defence lawyers to guide defendants through the maze of rules and rituals that characterize this justice system, maximizing their legal protections and minimizing the legal burdens that the system may order them to bear.
Party Participation
Canadian justice depends on the involvement of those directly affected by conflict, but does so in a way that encourages opposition. In a system focused entirely on the responsibility of offenders, all non-accused participants (including those harmed by offending behaviour) become potential witnesses for the prosecution or defence, even unto being forced by law to tell their stories in the adversarial setting of a courtroom. The accused person him- or herself, by contrast, is granted the absolute right to remain silent. All he or she must indicate is a plea – guilty or not.
Rules – Evidence and Relevance
Canadian law creates strict boundaries within which criminal cases are defined, deliberated, and disposed of. These rules regulate every aspect of the stories that are told in court – how investigations are conducted, what witnesses can say, and the matters upon which decisions are made. This means that very rarely will the ‘full truth’ come out in the course of a trial or (especially) a guilty plea: some people will never be asked for their testimony, and those who do must only respond directly to the questions they are asked. This allows courts to be narrowly focused and relatively free from unfounded opinion, but also restricts the depth and breadth of every conflict that is adjudicated. It is not unusual for a court to consider a case satisfactorily settled, while the individuals involved struggle with a lack of closure or completeness.
Proof
Canadian justice operates under the presumption of innocence – that is, unless and until the prosecution presents sufficient evidence to convince a court, beyond a reasonable doubt, of a person’s guilt, that person ought not to be punished. Proof is the currency by which all the system’s judgments are meant to be purchased. Despite this value, however, Canadian justice still exerts considerable coercive force upon those accused of wrongdoing. Depending on their past history and the seriousness of their charges, defendants will be questioned, held in custody, offered deals, and otherwise pressured to ‘make the case against themselves’ by pleading guilty. In principle, of course, this decision must still be voluntary, sincere, and well-informed.
Proportional Punishment
Once guilt is ascertained – either after the weighty rituals of a trial or a defendant’s simple admission of guilt – the Canadian justice system promises to respond to wrongdoing by inflicting a just measure of pain upon offenders. While a person’s rehabilitation is held up as an important criterion in deciding what to do once a crime has been confirmed, punishment – most bluntly manifested as incarceration –is the system’s primary directive, its most basic moral response to illegal conduct. Proportionality – the principle that punishment must be individually apportioned according to the seriousness of the offence and the blameworthiness of the offender – is meant to justify the punishments the system imposes. In an era of mandatory minimum jail sentences, however, the ability of judges to perform this calibrating function is increasingly channelled and circumscribed by lawmakers’ rules about what crime is ‘worth’, punitively speaking.
Hierarchical Authority
While the parties to a case (usually represented by lawyers) are responsible for presenting evidence and argument, all determinations of fact, law, guilt, and punishment are made by the court (composed of a judge and, occasionally, a jury of the defendant’s ‘peers’). If the litigants don’t like these decisions, or consider them wrong, they can appeal to other judges, and on up a chain ending with the Supreme Court of Canada. While judicial decision-makers are bound to consider the (properly voiced) perspectives of those involved in conflict or wrongdoing, they are not there to cultivate consensus.
Together, the seven principles sketched out above are meant to add up to something called justice, as defined and applied by the Canadian system. While the practice of these qualities is complex and imperfect, there is clearly nothing ‘wrong’ with this choice of sustaining values. But it is just as clear that these values are not indigenous to Anishinaabe society. How well do they reflect, and how well can they facilitate, indigenous justice values, in particular the Grandfather Teachings of courage, love, humility, respect, truth, honesty, and wisdom?
While there are certainly some reflections of similarity between the two sets of values, after several years as a professional in the Canadian justice system, I am forced to conclude that the practice of these seven Canadian legal values severely restricts and undermines the flourishing of the Seven Grandfathers. While it is easy to suggest that any individual can choose to manifest Anishinaabe teachings in the mainstream court system (either as an offender, victim, or other participant), the Canadian system provides very meagre soil for these values to take root and grow. What does it mean, for example, to exhibit truth or honesty in a system that counsels silence, or limited, interest-based admissions? In a structure that puts a premium on litigating contested facts, and imposing individual blame and punishment, what does it mean to exhibit wisdom, or love?
I mean simply that different values contribute to different valuations – of what justice means and what its attendant systems are intended to enable. The adversarial basis of Canadian justice is remarkably well-suited, when its principles are followed, to a justice leavened with respect for individual rights, fair treatment, and proportional punishment imposed only upon battle-tested proof. But it is much less suited for the values that animate an Anishinaabe understanding of justice.
Monday, August 27, 2012
Saturday, July 28, 2012
Summer Symbols
Summer in Sioux Lookout, as in everywhere else in the country, is a ripe time for celebrations. In the Indian Country that surrounds and runs through this little town, it is also a season of important commemorations, three of which straddle the flag-waving and fireworks of Canada's patriot day.
First, June 11 marked the fourth anniversary of the Canadian government's official apology for a century-long policy of extracting Indian children from their families (sometimes for years, sometimes forever) so as to extract and do away with their Indianness. Most of us did not then, and cannot ever, realize the importance of "The Apology" to those for whom it was meant. It seemed, beyond contrition, to promise a renewal of relations between the state and Indigenous peoples. Four years on, the message was recalled with an early morning ceremony, one of hundreds that were no doubt held on dusty fields and washboard roads like the one upon which we circled. This road had led to one of the residential schools that gave Anishinaabe youngsters their first and lasting taste of western education, western authority, western perversion. Now a small gathering of former students sat around a drum and sang in the rising sun, in the language of their survival. We remembered then, in the sharing of sad and hopeful stories, what the Prime Minister had said in 2008:
The burden of this experience has been on your shoulders for far too long. The burden is properly ours... You have been working on recovering from this experience for a long time and in a very real sense, we are now joining you on this journey.
But the old children still wondered, as did all of us gathered there in soft communion, standing in the very heart of this country but feeling a long way from silent Ottawa.
The second summer occasion in Indian Country came on June 21, which has been declared National Aboriginal Day. It is a day that passed without notice during most of my years in urban centres, but which is a fairly big deal in a place like Sioux Lookout, where half the population is indigenous. A chunk of main street was transformed into a pow-wow ground, complete with tipi and grandfather drum, and kids were taught how to make bannock and twist their tongues around Anishinaabemowin by a local elder. The centrepiece of the day's celebration was the signing of a friendship accord between the town of Sioux Lookout and the nearby Lac Seul and Slate Falls first nations. The dignitaries sat and withstood pulses of summer rain, proud that after a century of uneasy, informal coexistence, they were finally committing to a kind of mingled well-being. A small wet crowd smiled and clapped, as sincerely hopeful as its leaders. Finally, one of this region's luminous heroes, Garnet Angeconeb, was honoured with a Queen's Jubilee Medal (no irony intended). He is one of the few former residential school students I know personally, a man who has chosen not hide the wounds it inflicted upon him, but rather, in a courageous display of broken wholeness, forge this pain into forgiving, life-giving purpose.
The third occasion took place on July 6, at Lac Seul's annual Treaty Day. Since 1873, this has been a chance for the two signatories to Treaty 3, in this case Her Majesty and the Anishinaabe living around this large and intricate lake, to get together to recall and make good on promises made. A red-serge Mountie presides over the issuance of five dollar bills to all community members (an amount that has not kept up with inflation), and today a group was reenacting the goods-giving as it would have happened in the 1920's. A canoe laden with tea, kettles, and other consumerables, accompanied by the crimson cop and a fussily-suited Indian Agent, scraped onto the shore at the site (known as Archie's Landing after a since-passed resident), where the chief in bowler hat waited for the delegation. Formalities complete, a crowd began to form a loose queue in front of the annuity table, which took half the afternoon to wind through the whole gathering of eligibles. The rest of us sampled a contemporary free lunch (baloney sandwiches and bannock) and cheered on a few eager teams competing in canoe races (the chief versus Sioux Lookout's mayor was a favourite). Later, a minister called up every couple who had been married more than twenty years, to be recognized by scattered applause and personalized certificates of achievement.
Garnet, meanwhile, shuttled about the bumpy ground on his mechanized scooter. He was affable as always, but had a lot on his mind. "I'm running on empty" he confessed to me with a smile. He had only conceived of this ceremony a few days before, and the preparations had been hurried. But as three o'clock approached, and the last of the honoured couples had accepted their gift bags, Garnet grew visibly excited at what he had planned. Giddy as a child, even.
Those who count residential school among their lived experiences are known as 'survivors'. Survivors, not just of the sadistic acts of physical, psychological, and sexual abuse that an untold number endured, but of the uniform and inescapable agenda of the state's attempted reengineering of their humanity. All of the survivors who were present - about thirty folks who were mostly in their 50s or older, along with a few who looked surprisingly younger - had been presented earlier in the day with ribbons in the four colours of the Lac Seul Nation. All wore them pinned prominently against their chests.
Now, Garnet led this weathered troupe towards the big drum near the lakeshore, to circle for speeches and an honour song. Younger relations followed along to provide chairs for weary legs. Then Garnet announced that very soon we would be hearing the sound of a float plane. He dwelled upon the sound - the same sound that had signalled when children were swept out of the community for school, would now alert the gathering that children (albeit not the same ones) were returning home. Garnet's voice quivered as he described how two planes would circle, land on the nearby lake, and, at last, deliver their precious passengers back.
They were, of course, later than expected. But when a distant drone did finally take shape in pontoons and fuselage, even the oldest survivors stood and came down to the beach, where several kids, dressed in the uniforms they might have worn in the 1950s, bounded up the dock to our cheers, and no few tears.
First, June 11 marked the fourth anniversary of the Canadian government's official apology for a century-long policy of extracting Indian children from their families (sometimes for years, sometimes forever) so as to extract and do away with their Indianness. Most of us did not then, and cannot ever, realize the importance of "The Apology" to those for whom it was meant. It seemed, beyond contrition, to promise a renewal of relations between the state and Indigenous peoples. Four years on, the message was recalled with an early morning ceremony, one of hundreds that were no doubt held on dusty fields and washboard roads like the one upon which we circled. This road had led to one of the residential schools that gave Anishinaabe youngsters their first and lasting taste of western education, western authority, western perversion. Now a small gathering of former students sat around a drum and sang in the rising sun, in the language of their survival. We remembered then, in the sharing of sad and hopeful stories, what the Prime Minister had said in 2008:
The burden of this experience has been on your shoulders for far too long. The burden is properly ours... You have been working on recovering from this experience for a long time and in a very real sense, we are now joining you on this journey.
But the old children still wondered, as did all of us gathered there in soft communion, standing in the very heart of this country but feeling a long way from silent Ottawa.
The second summer occasion in Indian Country came on June 21, which has been declared National Aboriginal Day. It is a day that passed without notice during most of my years in urban centres, but which is a fairly big deal in a place like Sioux Lookout, where half the population is indigenous. A chunk of main street was transformed into a pow-wow ground, complete with tipi and grandfather drum, and kids were taught how to make bannock and twist their tongues around Anishinaabemowin by a local elder. The centrepiece of the day's celebration was the signing of a friendship accord between the town of Sioux Lookout and the nearby Lac Seul and Slate Falls first nations. The dignitaries sat and withstood pulses of summer rain, proud that after a century of uneasy, informal coexistence, they were finally committing to a kind of mingled well-being. A small wet crowd smiled and clapped, as sincerely hopeful as its leaders. Finally, one of this region's luminous heroes, Garnet Angeconeb, was honoured with a Queen's Jubilee Medal (no irony intended). He is one of the few former residential school students I know personally, a man who has chosen not hide the wounds it inflicted upon him, but rather, in a courageous display of broken wholeness, forge this pain into forgiving, life-giving purpose.
The third occasion took place on July 6, at Lac Seul's annual Treaty Day. Since 1873, this has been a chance for the two signatories to Treaty 3, in this case Her Majesty and the Anishinaabe living around this large and intricate lake, to get together to recall and make good on promises made. A red-serge Mountie presides over the issuance of five dollar bills to all community members (an amount that has not kept up with inflation), and today a group was reenacting the goods-giving as it would have happened in the 1920's. A canoe laden with tea, kettles, and other consumerables, accompanied by the crimson cop and a fussily-suited Indian Agent, scraped onto the shore at the site (known as Archie's Landing after a since-passed resident), where the chief in bowler hat waited for the delegation. Formalities complete, a crowd began to form a loose queue in front of the annuity table, which took half the afternoon to wind through the whole gathering of eligibles. The rest of us sampled a contemporary free lunch (baloney sandwiches and bannock) and cheered on a few eager teams competing in canoe races (the chief versus Sioux Lookout's mayor was a favourite). Later, a minister called up every couple who had been married more than twenty years, to be recognized by scattered applause and personalized certificates of achievement.
Garnet, meanwhile, shuttled about the bumpy ground on his mechanized scooter. He was affable as always, but had a lot on his mind. "I'm running on empty" he confessed to me with a smile. He had only conceived of this ceremony a few days before, and the preparations had been hurried. But as three o'clock approached, and the last of the honoured couples had accepted their gift bags, Garnet grew visibly excited at what he had planned. Giddy as a child, even.
Those who count residential school among their lived experiences are known as 'survivors'. Survivors, not just of the sadistic acts of physical, psychological, and sexual abuse that an untold number endured, but of the uniform and inescapable agenda of the state's attempted reengineering of their humanity. All of the survivors who were present - about thirty folks who were mostly in their 50s or older, along with a few who looked surprisingly younger - had been presented earlier in the day with ribbons in the four colours of the Lac Seul Nation. All wore them pinned prominently against their chests.
Now, Garnet led this weathered troupe towards the big drum near the lakeshore, to circle for speeches and an honour song. Younger relations followed along to provide chairs for weary legs. Then Garnet announced that very soon we would be hearing the sound of a float plane. He dwelled upon the sound - the same sound that had signalled when children were swept out of the community for school, would now alert the gathering that children (albeit not the same ones) were returning home. Garnet's voice quivered as he described how two planes would circle, land on the nearby lake, and, at last, deliver their precious passengers back.
They were, of course, later than expected. But when a distant drone did finally take shape in pontoons and fuselage, even the oldest survivors stood and came down to the beach, where several kids, dressed in the uniforms they might have worn in the 1950s, bounded up the dock to our cheers, and no few tears.
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