(Seven) Different Stories

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.