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.
Saturday, December 17, 2011
Happy New Year. I've been busy having babies.
I did, however, manage to attend a by-law workshop last month. While this does not strike one as an especially interesting topic to write or think too deeply about, it provided some fascinating and disturbing perspectives on the challenges of reserve life. While local laws may concern such seemingly mundane matters as dog leashes and parking lots, in a First Nations context they embody both hope and despair for the self-determining, meaningful exercise of control and responsibility over what matters to the citizens of communities.
Most of the attendees were members of band councils, along with a few representatives from the federal government and police agencies. I was there as an observer and presenter upon one of the more ambitious (perhaps desperate) attempts of a community to gain some control over the alcohol and drug (and gas, glue, hairspray, lacquer, hand sanitizer, etc etc) epidemics that are throttling two generations - the first not to be directly throttled by residential schools.
In any case, it became clear that everyone was in agreement that the by-law system, as it currently exists in the First Nations of this region, is in a state of complete disarray. "We put these laws on the books in '77!" one councillor howled. "And not one of them's been enforced ever since! How do we do that?". He was talking about the things that most of us take for granted - about traffic regulations and animal control, about student truancy and the production of homebrew (not craft beer, but noxious concoctions of yeast, ketchup, and other unmentionables). The Indian Act, that noble 19th-century piece of legislation that still governs almost every aspect of Aboriginal life, has, in its beneficence, granted band councils the power to make laws regarding these concerns (subject to tight oversight and circumscription by the Minister in charge), yet it provides little nurturance for their enforcement. It is an absurd cycle of inaction: police officers are not laying charges, prosecutors are divesting themselves of any responsibility for charges that might be laid, and courts overloaded with a criminal caseload are poorly equipped to give any legitimacy to any process that might be instituted. The Act itself provides only the most laughable of options for punishment: traffic infractions, for example, are subject to maximum $50 fines. Other problems are of a more practical nature. We heard from one council member about how his community is overrun with half-wild dogs - yet implementing a control or sterilization program would cost thousands of dollars per animal. He was worried about a child getting bitten or dragged away. Another spoke movingly of the hard choices facing band councils strapped for funds and facing crisis: his community has had to hire someone to patrol the parking lot on Bingo nights, to stop the kids who are crouching down to get high on the exhaust fumes of idling cars.
This is how peril, apathy, or brusque, impotent anger seep into the lives of any human, or any community subject to such pressures. Loss of control and lack of resources dos-si-dos into dangerous territory, while us outsiders watch, or worse, look away.
I hope I will follow up on this post with more hopeful developments - no one knows these problems like those living on reserve, and there are many people working hard, with very little, to make life better.
I did, however, manage to attend a by-law workshop last month. While this does not strike one as an especially interesting topic to write or think too deeply about, it provided some fascinating and disturbing perspectives on the challenges of reserve life. While local laws may concern such seemingly mundane matters as dog leashes and parking lots, in a First Nations context they embody both hope and despair for the self-determining, meaningful exercise of control and responsibility over what matters to the citizens of communities.
Most of the attendees were members of band councils, along with a few representatives from the federal government and police agencies. I was there as an observer and presenter upon one of the more ambitious (perhaps desperate) attempts of a community to gain some control over the alcohol and drug (and gas, glue, hairspray, lacquer, hand sanitizer, etc etc) epidemics that are throttling two generations - the first not to be directly throttled by residential schools.
In any case, it became clear that everyone was in agreement that the by-law system, as it currently exists in the First Nations of this region, is in a state of complete disarray. "We put these laws on the books in '77!" one councillor howled. "And not one of them's been enforced ever since! How do we do that?". He was talking about the things that most of us take for granted - about traffic regulations and animal control, about student truancy and the production of homebrew (not craft beer, but noxious concoctions of yeast, ketchup, and other unmentionables). The Indian Act, that noble 19th-century piece of legislation that still governs almost every aspect of Aboriginal life, has, in its beneficence, granted band councils the power to make laws regarding these concerns (subject to tight oversight and circumscription by the Minister in charge), yet it provides little nurturance for their enforcement. It is an absurd cycle of inaction: police officers are not laying charges, prosecutors are divesting themselves of any responsibility for charges that might be laid, and courts overloaded with a criminal caseload are poorly equipped to give any legitimacy to any process that might be instituted. The Act itself provides only the most laughable of options for punishment: traffic infractions, for example, are subject to maximum $50 fines. Other problems are of a more practical nature. We heard from one council member about how his community is overrun with half-wild dogs - yet implementing a control or sterilization program would cost thousands of dollars per animal. He was worried about a child getting bitten or dragged away. Another spoke movingly of the hard choices facing band councils strapped for funds and facing crisis: his community has had to hire someone to patrol the parking lot on Bingo nights, to stop the kids who are crouching down to get high on the exhaust fumes of idling cars.
This is how peril, apathy, or brusque, impotent anger seep into the lives of any human, or any community subject to such pressures. Loss of control and lack of resources dos-si-dos into dangerous territory, while us outsiders watch, or worse, look away.
I hope I will follow up on this post with more hopeful developments - no one knows these problems like those living on reserve, and there are many people working hard, with very little, to make life better.
Thursday, October 27, 2011
Ear to the Ground
Someone I knew, long ago, once told me to turn off a song that was playing on my car radio. "That's not music!" she complained, in reference to the thick drumbeats and undulating wails of a Cree or Blackfoot anthem (I can't remember). I couldn't articulate much of a rebuttal at the time - this was a classically trained instrumentalist with a fine ear and heart for Schubert, who gushed over the intricacies of a Rachmaninoff concerto. Her judgment bothered me though - there was something in these rhythms that I trusted, something that I deeply loved, without needing to understand why. If music is meant to conjure truth and beauty, to exhibit the human sense of holiness, then this was surely music to me.
This sense returned to me recently as I sat in the healing room of our local hospital, as one in a circle of community members who had gathered to bless a new handbook on moving forward through (and from) the ravages of residential school. It was an emotional affair, as this town is torn through with so many stories of loss and pain and tragedy, many of multi-generational scope, most only now beginning to be told. A women's hand drum group was offering an honour song, and all of us stood in the round to receive it. The music rolled us into a vibrant, vibrating whole. Rhythms that, if seen on paper might seem mundane and repetitious, served to perfectly convey the sprit of this gathering, its meaning and moment in the now of these gifted and grieving human lives. No symphony could have resonated it better, with more real, age- and earth-won wisdom.
This sense returned to me recently as I sat in the healing room of our local hospital, as one in a circle of community members who had gathered to bless a new handbook on moving forward through (and from) the ravages of residential school. It was an emotional affair, as this town is torn through with so many stories of loss and pain and tragedy, many of multi-generational scope, most only now beginning to be told. A women's hand drum group was offering an honour song, and all of us stood in the round to receive it. The music rolled us into a vibrant, vibrating whole. Rhythms that, if seen on paper might seem mundane and repetitious, served to perfectly convey the sprit of this gathering, its meaning and moment in the now of these gifted and grieving human lives. No symphony could have resonated it better, with more real, age- and earth-won wisdom.
Thursday, October 13, 2011
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.
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.
Thursday, September 29, 2011
double vision
This is the season of still fire in the leaves of the matchstick stands
of birch that huddle within changeless swaths of spruce and pine.
And the most diseased human habitation I have ever witnessed exists in the midst of this beauty - vast lands of unlogged forest, measureless waterways of lake, marsh, and river.
This is where the law's dissonance booms. It sounds like the sighs of a court party forced to (literally) pick the locks of doors to set up its temporary chamber, and begin its proceedings (literally) in the dimness of a hall whose lights it has no power or knowledge to operate. It sounds like the echo of names called into the sparse lobby of a community centre that, although recently built, is already scarred by the stone-throws and scrawlings of gas-addled youth; names of witnesses or accuseds whose absence prompts frustrated warrants of arrest, and the consequent lumbering of police trucks along pockmarked gravel roads.
Disengagement feels like the bruise my spirit accepts in the knowing that so many of my clients will run the whole course of their legal ordeals without ever facing a single fact of their enfetterment, and that they will be turned back, in the end, into the whip of a suffering/harming cyclone. It is the sadness of hearing a client tell me that his accuser will fare far worse than himself "because no one likes a rat round here". And it lies in the silence of victims who, in bowing to this granite logic, put their own necks into the law's headlock.
No one amplifies their voices, the way I do on my clients' behalf. Therein lies, as even Conservatives know, a crucial question, a distorted twist of truth. But does the answer lie in ramping up the rhetorc of war, of pounding ever harder on these rickety tables that we erect in the centres of communities whose ills and rhythms we yet weakly pretend to comprehend?
This of course is the rub, the nub of it. The elephant whose hulk rests unaddressed in this district's rootless courts, in our so-called universal law, and in the ongoing collision of our cultures. As I go about my work, I just want to acknowledge this.
of birch that huddle within changeless swaths of spruce and pine.
And the most diseased human habitation I have ever witnessed exists in the midst of this beauty - vast lands of unlogged forest, measureless waterways of lake, marsh, and river.
This is where the law's dissonance booms. It sounds like the sighs of a court party forced to (literally) pick the locks of doors to set up its temporary chamber, and begin its proceedings (literally) in the dimness of a hall whose lights it has no power or knowledge to operate. It sounds like the echo of names called into the sparse lobby of a community centre that, although recently built, is already scarred by the stone-throws and scrawlings of gas-addled youth; names of witnesses or accuseds whose absence prompts frustrated warrants of arrest, and the consequent lumbering of police trucks along pockmarked gravel roads.
Disengagement feels like the bruise my spirit accepts in the knowing that so many of my clients will run the whole course of their legal ordeals without ever facing a single fact of their enfetterment, and that they will be turned back, in the end, into the whip of a suffering/harming cyclone. It is the sadness of hearing a client tell me that his accuser will fare far worse than himself "because no one likes a rat round here". And it lies in the silence of victims who, in bowing to this granite logic, put their own necks into the law's headlock.
No one amplifies their voices, the way I do on my clients' behalf. Therein lies, as even Conservatives know, a crucial question, a distorted twist of truth. But does the answer lie in ramping up the rhetorc of war, of pounding ever harder on these rickety tables that we erect in the centres of communities whose ills and rhythms we yet weakly pretend to comprehend?
This of course is the rub, the nub of it. The elephant whose hulk rests unaddressed in this district's rootless courts, in our so-called universal law, and in the ongoing collision of our cultures. As I go about my work, I just want to acknowledge this.
Monday, September 26, 2011
Why I Stay
Sioux Lookout recommends itself to anyone who wants to shimmy free of derivative living. It is not a place of easy, anonymous consumption, or complacent spectatorship, but somewhere that invites headlong participation in the joys and challenges of community, in all its streaming, messy diversity. In this month alone, we have gathered for the town's first annual Pride picnic (which was said to have attracted more folks than twenty-times-larger Abbotsford's parade), the fifteenth Take Back the Night walk, and (next week) the vigil for missing and murdered Aboriginal women. We've also gone from working to lake swimming in under ten minutes, hiked up the town's namesake "mountain", and successfully completed several Sioux Lookout triathlons (cycle, paddle, potluck). The latest of these forays took place during a six-hour power outage - an annual event in early fall where transmission line maintenance sends the whole town back a century or so. This year's iteration gracefully fell on a warm and sunny Sunday, and it seemed like everyone spent the day joyfully outdoors, bedding gardens, cording firewood, or fishing from the train trestle in unhindered defiance of trespass laws. Despite all that you may read here, this is a good place to be human, and to call home.
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