MSON ,titutional negotiations the emer­ ABORIGINAL PEOPLES, JUSTICE AND Inuit society-generated constitu- 1 is due for promulgation before THE LAW

and modes of progression from trol to modern macro-social or­ MURRAY SINCLAIR .vere partly using the Indigenous ASSOCIATE CHIEF JUDGE, PROVINCIAL COURT OF ing-with brilliant effect-what I MANITOBA ganizations they developed, like uvialuit Committee for Original htionship between governments . to the point where there are in­ INTRODUCTION :umpolar Conference, which has Early in the 1970s, I had the privilege of attending one of the first national tzation (NGO) at the United Na- conferences of attorneys general of Canada that addressed the issue of Abo­ riginal Peoples and the justice system. From then to the current work of the tparatively, because that is what Royal Commission on Aboriginal Peoples, several other conferences, stud­ 1d global scale a number of other ies, task forces, royal commissions and public inquiries have highlighted 1s Peoples taken from recent post- the fact that the enforcement and administration of law in this country have of India and Nagaland; or India, an adverse impact on Aboriginal people. tia; Uganda and Bakonjo-Baamba; It is clear that Aboriginal people are over-represented in the criminal :!a, and the Andean Pehuenche and child welfare branches of the justice system, and that they are involun­ .e. Finally, the earnest interests of tarily drawn into the justice system in larger numbers than their propor­ >f Saskatchewan and the Depart- tion of the population. Why that is so is not the focus of this presentation. the late Martin Ennals, Sallows In this presentation, I want to discuss issues relating to the cultural conflicts ld us that we might well turn our inherent within the administrationof justice, to answer the question whether People's Republic of China and Aboriginal people are receiving justice in our system and to suggest that, ject of speeches by Lord Ennals given the opportunity, Aboriginal societies would likely do things differ­ >okespeople. It was also the topic ently. ,y Lord Ennals earlier this year in It is important to understand how our current state of affairs came about and why it is likely to continue. Almost all the studies I referred to tpse at some relatively successful earlier have come to the conclusion that the adverse impact of the adminis­ cultures as they are represented tration of justice on Aboriginal people has come about because of past mis­ ·n post-Swedish Finland and Swe­ directed and inappropriate government approaches to the use and enforce­ east to my home, between the ment of law throughout our history, combined with a clear unwillingness :: Greenland and Nordic-culture on the part of Aboriginal people to participate in the justice system in the �ere on all these cases; however, same way as non-Aboriginal people or as people are expected to. The Com­ ples shows that there is much for mission of Inquiry in Manitoba, of which I was a co-commissioner along 1ltural dialogue between govern- with Associate Chief Justice A. C. Hamilton of Manitoba's Courtof Queen's Bench, reached several conclusions about this area. 1 Some of them are:

• Aboriginal people are oftenovercharged (that is they are charged with more, and/ or more serious, offences than they are ultimately con­ victed of); 174 MURRAY SINCLAIR PART V: ABORIGINAL

• Aboriginal people are less likely than non-Aboriginal people to plea their involvement in our crimi bargain or to benefit from a negotiated plea; a myriad of problems requirir • Aboriginal people are less likely than non-Aboriginal people to con­ Many times I have hean test their charges; people that causes them to bel • Aboriginal people are often unrepresented or under-represented in problem lies within the Abori court. They are largely economically impoverished and cannot afford That, almost inevitably, leads c to hire their own counsel. Aboriginal people are also charged more to change the Aboriginal pen oftenwith summaryconviction offencesfor which our legal aid plans almost all our efforts at refon are, for resource reasons, unwilling or unable to provide, or pay for, Aboriginal people about the ju legal assistance. "connect with" the system or o • Even when they do have counsel, Aboriginal people see their lawyers find their way through it. less frequently than non-Aboriginal accused and for shorter periods of Establishing and funding1 time; Aboriginal paralegal programs, • Aboriginal people are more likely than non-Aboriginal people to plead cused information kits, making guilty, even when they are not, or do not believe themselves to be, Aboriginal languages about ho' guilty; riginal law student programs, h • Aboriginal people are more likely than non-Aboriginal people to be ability to speak Aboriginal Ian incarcerated upon conviction (but compared with non-Aboriginal peo­ Aboriginal judges-all find thei1 ple, they are likely to receive, on average, shorter sentences); Attempts at reforming the • Aboriginal people are more likely than non-Aboriginal people to leave more significant, issues have no the legal process without understanding, and therefore without re­ lieve, is because the non-Aborii specting, what has occurred to them or why. not seen the problem as lying v whether at least some of the pro There is an interesting twist to Aboriginal over-involvement in the the justice system. Perhaps the criminal justice and child welfare systems. Aboriginal people are under­ wrong with our justice system th involved in the civil and family law systems. Aboriginal people apparently do not enter into, or engage, the Canadian justice system voluntarily. DIFFERENCES AND On one level, this may not appear to be a problem. Many people are The starting point is a difficult o rightfully critical of a tendency in our society to be excessively litigious. of "civil rights" and "equality"; it We must all be concerned about a society where we try to pass a law to deal being Aboriginal and being non· with every social or political problem and where, when we don't like what's quires one to come to terms witl happening or the pace at which it's happening, we immediately run off to of North America, for the most court to try to get it stopped or to try to get it going again or to try to make phies fundamentally different frc it stay the same or to try to change it or to get money for whatever hap­ society, and that these belief sys1 pened to it. I am not one to advocate unnecessary litigation. Our courtsdo mentally differentas to be inherer not hold all the answers; I know, for I am one who sometimes gets asked. I edge that, given the long history c also believe it is fair to say that, for cultural reasons, Aboriginal people tend this country, the fact that Aborig to seek non-adversarial methods of resolving their problems. Going to court many Aboriginal communities i� just does not fit Aboriginal thinking. continue and, possibly, to grow. On another level, the unwillingness of Aboriginal people to voluntar­ This is not to say that all A ily engage the institutions of society designed to resolve serious problems is philosophy, religious belief or m a sure sign that those problems are going unresolved. All the recent studies have been in the past, within Abe into Aboriginal people in today's society, as well as the nature and level of :LAIR PART V: ABORIGINAL PEOPLES, JUSTICE AND THE LAW 175 n non-Aboriginal people to plea their involvement in our criminal and child welfare systems, clearly suggest :ed plea; a myriad of problems requiring resolution. n non-Aboriginal people to con- Many times I have heard people ask: "What is it about Aboriginal people that causes them to behave like that?" Such a question suggests the ·esented or under-represented in problem lies within the Aboriginal person or with his or her community. · impoverished and cannot afford That, almost inevitably, leads one to conclude that the answer lies in trying tal people are also charged more to change the Aboriginal person or his or her community. As a result, nces for which our legal aid plans almost all our efforts at reform have centred on informing or educating ::>r unable to provide, or pay for, Aboriginal people about the justice system, on finding ways to get them to "connect with" the system or on finding ways to make it easier for them to ,original people see their lawyers find their way through it. 1ccused and for shorter periods of Establishing and funding moreand better Aboriginal courtworker or Aboriginal paralegal programs, printing more and better aboriginally fo­ n non-Aboriginal people to plead cused information kits, making more and better audio- and video-tapes in :fa not believe themselves to be, Aboriginal languages about how courts and laws work, establishing Abo­ riginal law student programs, hiring more Aboriginal court staff with the 1an non-Aboriginal people to be ability to speak Aboriginal languages and recruiting or appointing more npared with non-Aboriginal peo­ Aboriginal judges-all find their justificationin such thinking. :rage, shorter sentences); Attempts at reforming the system itself in ways that address other, tn non-Aboriginal people to leave more significant, issues have not been undertaken. The main reason, I be­ tding, and therefore without re­ lieve, is because the non-Aboriginal people who control the system have or why. not seen the problem as lying within "the system." It is time to question whether at least some of the problem lies in the way we do business within ,riginal over-involvement in the the justice system. Perhaps the question should be restated as: "What is ts. Aboriginal people are under­ wrong with our justice system that Aboriginal people find it so alienating?" ns. Aboriginal people apparently 1 justice system voluntarily. DIFFERENCES AND SIMILARITIES , be a problem. Many people are The starting point is a difficult one for people raised with the liberal ideals 1ciety to be excessively litigious. of "civil rights" and "equality"; it requires one to accept the possibility that .vherewe try to pass a law to deal being Aboriginal and being non-Aboriginal involve being different. It re­ .vhere,when we don't like what's quires one to come to terms with the concept that the Aboriginal Peoples :ning, we immediately run off to of North America, for the most part, hold world views and life philoso­ :t it going again or to try to make phies fundamentally different from those of the dominant Euro-Canadian to get money for whatever hap­ society, and that these belief systems and approaches to life are so funda­ !cessary litigation. Our courtsdo mentally differentas to be inherently in conflict.It requires one to acknowl­ one who sometimes gets asked. I edge that, given the long history of cultural oppression that has occurred in 1 reasons, Aboriginal people tend this country, the fact that Aboriginal cultures are still a vibrant force in so 1g their problems. Going to court many Aboriginal communities is evidence that those forces are likely to continue and, possibly, to grow. ::,fAboriginal people to voluntar- This is not to say that all Aboriginal Peoples adhere to a single life 1ed to resolve serious problems is philosophy, religious belief or moral code. They do not. There are, and mresolved. All the recent studies have been in the past, within Aboriginal societies, dissenting and noncon- as well as the nature and level of 176 MURRAY SINCLAIR PART V: ABORIGINAL formist individuals and groups. Variations of belief, fundamental values honoured. They were treated and ethical systems within the dominant Canadian and American societies amples were also drawn from· are even more abundant. Of necessity, I must generalize in my comments, the lives of fictitious heroes a although not, I believe, inappropriately or unfairly. I am not dealing here were considered worth emula1 with the beliefs and traditions of one particular tribe or culture, although I The elders in a tribe, as tl speak from my own experience and personal knowledge. There are areas of important role in the teaching thought and belief that are substantially shared by both Aboriginal and they were repositories of the non-Aboriginal peoples. Nevertheless,the differences are broad enough and suitably and honourably in e, general enough to make many Euro-Canadian institutions incompatible with the recent past, which they re: the moral and ethical value systems and approaches of AboriginalCanadians. past, which they had learned f At a fundamental cultural level, the difference between Aboriginal unwritten source of knowledi and Western traditions lies in the perception of one's relationship with the memories constituted the unw Creator. I am not a biblical scholar, but as I have come to understand it, in law, and the means for interprc Judaeo-Christian tradition, man occupies a position just below God and a particular occasion. Aborigin the angels but above all other earthly creation. Christian belief and tradi­ area. tion hold that God created mankind last, on the sixth day, as the culmina­ While I was growing up, tion of creation and gave him dominion over the earth. According to the schools at the request (and dire Genesis account of Creation: "God said, 'Let us make man in our image and people of my generation and of likeness to rule the fish in the sea, the birds of heaven, the cattle, all wild tutions because our families h� animals on earth, and all reptiles that crawl upon the earth." Mankind was nineteenth century. Although t told to "fillthe earth and subdue it, rule over the fishin the sea, the birds of hard to break. With the repeal o heaven, and every living thing that moves upon the earth." more of us were exposed, some In sharp contrast, the Aboriginal world view holds that mankind is traditional elders, who were ablf the least powerful and least important factor in creation. Human beings tian, parents and grandparents st cannot influence events, and are disrespectful and unrealistic if they try. other members of Canadian soc Mankind's interests are not to be placed above those of any other part of We were able, through atte creation. In the matter of the hierarchy, or relative importance, of beings dances, feasts, giveaways, nami within creation, Aboriginal and Western intellectual traditions are almost lodge meetings to learn from tl diametrically opposed. values and approaches of the pee It goes without saying that our world view provides the basis for those other things, that the values of customs, thoughts and behaviour we consider appropriate. Each person's ways, such as through the corre individual and collective (that is to say, cultural) understanding of humani­ ways, such as through the langu ty's place in creation, and the behaviour appropriate to that place, pervades Those elders taught me tha and shapes all aspects of one's life. To understand that idea, I ask you all to are bravery, honesty, humility, think for a moment about how you learned what it means to be, and how that the cultural values of the D one is, a Canadian. In much the same way, one must try to appreciate that group and harmony within it; t; there are many ways that one is "taught" to be Aboriginal in Aboriginal the development of one's ability society. one's emotions; reverence for nat Appropriate conduct in Aboriginal societies was assured through the ness of the Creator. The four grc teaching of proper thought and behaviour from one generation to t e next. � . are bravery, generosity, fortitud Moral, ethical and juridical principles were taught by example. Individuals Apache beliefs and values h: within society who lived according to tribal principles were esteemed and of the individual; non-interferen, LAIR PART V: ABORIGINAL PEOPLES, JUSTICE AND THE LAW 177 1s of belief, fundamental values honoured. They were treated as living role models of fitting conduct. Ex­ :anadian and American societies amples were also drawn from the lives of people no longer living and from mst generalize in my comments, the lives of fictitious heroes and heroines whose manners and behaviour r unfairly. I am not dealing here were considered worth emulating. cular tribe or culture, although I The elders in a tribe, as the vital link with the past, not only played an tal knowledge. There are areas of important role in the teaching of correct conduct to younger generations; shared by both Aboriginal and they were repositories of the knowledge that told people how to behave differences are broad enough and suitably and honourably in every situation. They had memories of both an institutions incompatible with the recent past, which they remembered personally, and the more distant roaches of Aboriginal Canadians. past, which they had learned from their teaching. Elders were and are the · difference between Aboriginal unwritten source of knowledge of fitting behaviour and conduct. Their )n of one's relationship with the memories constituted the unwritten precedents for Aboriginal customary I have come to understand it, in law, and the means for interpreting customary law in a manner suitable to a position just below God and a particular occasion. Aboriginal elders are still revered for their role in this ttion. Christian belief and tradi­ area. )n the sixth day, as the culmina­ While I was growing up, I attended the Catholic church and public ,ver the earth. According to the schools at the request (and direction) of my Catholic grandmother. Many et us make man in our image and people of my generationa and of my parents' generation attended these insti­ ds of heaven, the cattle, all wild tutions because our fmilies had been required to do so by law since the 1 upon the earth." Mankind was nineteenth century. Although those laws have been changed, old habits are er the fishin the sea, the birds of hard to break. With the repeal of those prohibitions by the 1950s, more and upon the earth." more of us were exposed, some for the first time, to the teachings of more ,rld view holds that mankind is traditional elders, who were able to explain why even our, apparently Chris­ :tor in creation. Human beings tian, parents and grandparents still somehow viewed things differently from :tful and unrealistic if they try. other members of Canadian society. hove those of any other part of We were able, through attendance at traditional gatherings such as sun 1r relative importance, of beings dances, feasts, giveaways, namings, weddings, fastings and at Midewiwin ntellectual traditions are almost lodge meetings to learn from the elders of our tribe what the underlying values and approaches of the people actually were. We were taught, among view provides the basis for those other things, that the values of the people are taught not only in direct ,ider appropriate. Each person's ways, such as through the correcting of children, but in even more subtle tural) understanding of humani­ ways, such as through the language itself. propriate to that place, pervades Those elders taught me that the seven traditional values of my people !rstand that idea, I ask you all to are bravery, honesty, humility, love, respect, truth and wisdom. I am told :d what it means to be, and how that the cultural values of the Dakota people include conformity with the , one must tryto appreciate that group and harmony within it; taking responsibility for the here and now; to be Aboriginal in Aboriginal the development of one's ability to make personal decisions; control over one's emotions; reverence for nature even while using it, and constant aware­ )Cieties was assured through the ness of the Creator. The four great virtues taught in the Dakota sun dance from one generation to the next. are bravery, generosity, fortitude and integrity. � taught by example. Individuals Apache beliefs and values have been stated as respect for the autonomy al principles were esteemed and of the individual; non-interference; desire for harmony in interpersonal re- PART V: ABORIGINA 178 MURRAY SINCLAIR lations; respect for individual freedom; co-operation and sharing. The basic ence, reconciliation and rest values of the Cheyenne people include respect for the spirit world; desire consistent with the importan, for harmony and wellbeing in interpersonal relationships; desire for har­ and freedomof the individual mony and balance with nature; bravery and mastery of self; generosity, confrontation. sharing and co-operation; individual freedom and autonomy consistent with In the past, smaller pop co-operation and collective wellbeing, and humility and respect in all rela­ made it possible for nonconfc tionships. from the community, to lea, None of these values would be found inadequate or inappropriate by unacceptable or dangerous to the dominant Canadian society. The same or similar values exist within frequently deals with people v most of the world's cultural traditions; however, Euro-Canadian society ety for a period of time. We c has developed conventions that allow such ethical and moral values to be ment and incarceration appeat separated, at least temporarily, from everyday life. Aboriginal North Ameri­ is an underlying value of punis can cultures have not done so. tion that is not associated wid: An example is the ease with which a member of the dominant society While during either a pe. can plead "not guilty" to a charge for which he is, in fact, responsible. In cused cannot repeat his or her c Western tradition, the plea is not seen as dishonest; it is understood as a point, be allowed back, recon conventional response to an accusation, based on the doctrine that people apply when the Aboriginal co are innocent until proven guilty, on the principle that accused are not re­ let him or her return. The estal quired to incriminate themselves, and on the practice of requiring the pros­ on the other hand, is that after ecution to prove guilt beyond a reasonable doubt in open court. In Abo­ has "paid the price" and should riginal cultures, to deny a true allegation is seen as dishonest and such a he or she has done. The princip denial would be a repudiation of fundamental, highly valued, though silent, ation with the community do n standards of behaviour. dealt with at any point in the p principles are not accorded the THE MEANING OF JUSTICE eties. societies. In Rehabilitation is not a pri: At a basic level, justice is perceived differently by Aboriginal harm­ tern when dealing with an off� the dominant society, deviant behaviour that is potentially or actually a wrong that young offenders. It is only om fulto society, to individuals or to perpetrators, is considered designed to sentencing judges, and it is ofo must be controlled by interdiction, enforcement and correction is on punish­ Institutionalized support is ran punish and deter harmful deviantbehaviour. The emphasis acceptable Restitution is ordered generally ment of the deviant to make him or her conform to socially usually only if the offenderhas t forms of behaviour or to protect other members of society. would be bution is often the primary thn The primary meaning of "justice" in an Aboriginal society through recon­ Most Aboriginal societies v that of restoring peace and equilibrium to the community individual or autonomy and freedom consistc ciling the accused with his or her own conscience and with the is a difference and community harmony, resp< family that is wronged. This is a fundamental difference. It of the ways in ings, reluctance to criticize or in that significantly challenges the appropriateness of many people in frontation and adversarial positi which the present legal and justice systems deal with Aboriginal with their system is applied to Aboriginal . the resolution of their conflicts, in the reconciliation of accused good order. principles are clearly at odds wit communities and in maintaining community harmony and haviour of the people. Aboriginal cultures approach problems of deviance and nonconform­ for non-interfer- For example, as the least im ity in a non-judgmental manner, with strong preferences .AIR PART V: ABORIGINAL PEOPLES, JUSTICE AND THE LAW 179 ,peration and sharing. The basic ence, reconciliation and restitution. The principle of non-interference is pect for the spirit world; desire consistent with the importance Aboriginal Peoples place on the autonomy al relationships; desire for har­ and freedom of the individual, and the avoidance of relationship-destroying nd mastery of self; generosity, confrontation. riand autonomy consistent with In the past, smaller populations and larger areas of uninhabited land humility and respect in all rela- made it possible for nonconformists, either voluntarily or under pressure from the community, to leave the community where their deviance was inadequate or inappropriate by unacceptable or dangerous to the collective. The Canadian justice system ! or similar values exist within frequently deals with people who misbehave by removing them from soci­ >wever, Euro-Canadian society ety for a period of time. We call this incarceration. To this extent banish­ ethical and moral values to be ment and incarceration appear to have the same objective. However, there 1y life. Aboriginal NorthAmeri- is an underlying value of punishment attached to the principle of incarcera­ tion that is not associated with the concept of banishment. 1ember of the dominant society While during either a period of incarceration or banishment, the ac­ :h he is, in fact, responsible. In cused cannot repeat his or her offences in the community and may, at some :iishonest; it is understood as a point, be allowed back, reconciliation and atonement are issues that still sed on the doctrine that people apply when the Aboriginal community banishes someone and decides to ·inciple that accused are not re­ let him or her return. The established principle surrounding incarceration, e practice of requiring the pros­ on the other hand, is that after completing his or her sentence, the accused : doubt in open court. In Abo­ has "paid the price" and should be seen as having atoned to society for what ls seen as dishonest and such a he or she has done. The principles of restitution to the victim and reconcili­ al, highly valued, though silent, ation with the community do not mark the manner in which the accused is dealt with at any point in the process. While they may be referred to, such principles are not accorded the importance they receive in Aboriginal soci­ eties. ritly by Aboriginal societies. In Rehabilitation is not a primary aim of the Euro-Canadian justice sys­ tis potentially or actually harm­ tem when dealing with an offender, with the possible exception of very :ors, is considered a wrong that young offenders. It is only one of several factors taken into account by nent and correction designed to sentencing judges, and it is often undermined by lack of public support. llr. The emphasis is on punish­ Institutionalized support is rarely and only minimally offered to victims. conform to socially acceptable Restitution is ordered generally as a form of financial compensation and nbers of society. usually only if the offender has the financialresources to do so. Thus, retri­ m Aboriginal society would be bution is often the primary thrust of action taken against deviants. the community through recon­ MostAboriginal societies value the interrelated principles of individual ience and with the individual or autonomy and freedom consistent with the preservation of relationships ital difference. It is a difference and community harmony, respect for other human (and non-human) be­ teness of many of the ways in ings, reluctance to criticize or interfere with others, and avoidance of con­ deal with Aboriginal people in frontation and adversarial positions. When the dominant society's justice nciliation of accused with their system is applied to Aboriginal individuals and communities, many of its ty harmony and good order. principles are clearly at odds with the life philosophies that govern the be­ 1s of deviance and nonconform­ haviour of the people. rig preferences for non-interfer- For example, as the least importantcreature in the universe, according 180 MURRAY SINCLAIR PART V: ABORIGINJl to his or her world view, an Aboriginal person would necessarily be un­ that more of the truth can be willing or unable to insist that his or her version of events is the complete ute information. In such a sy and only true version. According to the Aboriginal world view, truth is mounting consensus as to wh relative and always incomplete. When taken literally, therefore, the stand­ ment that the consensus is cc ard courtroom oath-to tell the truth, the whole truth and nothing but the This differs substantial! truth-is illogical and meaningless, not only to Aboriginal persons but, has the right to remain silent from the Aboriginal perspective, to all people. The Aboriginal viewpoint or her, but where he or she is would require the individual to speak the truth "as you know it" and not to fying; where only the victin dispute the validity of another viewpoint of the same event or issue. No testify; where the questions one can claim to know the whole truth of any situation; every witness or adversarial counsel; where qu believer will have perceived an event or understood a situation differently. answers; where certain topic1 It would be rare for an Aboriginal witness to assert that another witness is very important information � lying or has gotten his facts wrong. lies is deemed inadmissible. Our justice system frowns upon an individual who appears uncertain In separate justice syster about his or her evidence, and failing to assert the superiority of one's own in sentencing. Because "justice evidence over that of another is often seen as uncertainty. Given the Abo­ harmony is restored to the co riginal world view, where the relativity of truth is well understood, one can people who have been or mig readily perceive that it would be virtually impossible for an Aboriginal victim, would have to be co1 witness to comply with the strictures of the court in the matter of truth­ order, when a person is wroni telling. In a system where one's credibility is determined to a large extent repair the order and disharmc by how well one's testimony stands up to cross-examination, the Aborigi­ done. In most cases, the respc nal view of the relativity of truth can give the erroneous perception that the pensate the persons wronged. witness is changing his or her testimony, when in reality all that may be responsible for the maintenan happening is that the witness is recognizing or acknowledging that another Reparation or restitutio: view of the events, no matter how far-fetched or different from his or her that restored balance and harr reality, may be just as valid as his or hers. be a primary consideration. T Differences in world views, as you can see, can result in differences in poverished, would be entitlec each side's philosophies and sense of purpose about "truth," "law" and "jus­ the community, sentencing t tice." This will almost inevitably lead to differences in viewpoints about placing him or her on probati what a legal system should try to achieve, and how it should go about onciliation, would be tantam< achieving its objectives. The truth determination process is a case in point. any responsibility for restituti In Aboriginal societies "truth determination" would, in my view, be Westernsense-at least from thi very different from "truth determination" in Western society. Methods and by them as an abdication of r processes for solving disputes in Aboriginal societies have, of course, devel­ wrongdoer. oped out of the basic value systems of the people. Belief in the inherent Individuals dependent 01 decency and wisdom of each individual implies that any person might have children, grandparents, grand1 useful opinions on any given situation and, if they wish to express them, involved, and from an Abori should be listened to respectfully. Aboriginal methods of dispute-resolu­ actions to control the offende1 tion, therefore, would allow for any person to volunteer an opinion or "Justice" in Aboriginal societie make a comment. The "truth" of an incident would be arrived at through sequences of a particular dispo hearing many descriptions of the event. Because it is impossible to arrive at munity, as well as on the offc "the whole truth" in any circumstances, Aboriginal Peoples would believe say that punishment of an inc .AIR PART V: ABORIGINAL PEOPLES, JUSTICE AND THE LAW 181 •erson would necessarily be un­ that more of the truth can be determined when everyone is free to contrib­ ersion of events is the complete ute information. In such a system, the silence of an accused in the face of a \.boriginal world view, truth is mounting consensus as to what occurred would be taken as an acknowledg­ :n literally, therefore, the stand­ ment that the consensus is correct. l'holetruth and nothing but the This differs substantially from a system where the accused not only 1ly to Aboriginal persons but, has the right to remain silent and not to have that silence held against him >ple. The Aboriginal viewpoint or her, but where he or she is invariably discouraged by counsel from testi­ uth "as you know it" and not to fying; where only the victim or a small number of people are called to of the same event or issue. No testify; where the questions to be responded to are carefully chosen by any situation; every witness or adversarial counsel; where questions can be asked in ways that dictate their derstood a situation differently. answers; where certain topics are considered irrelevant, and where certain to assert that another witness is very important information about the accused or the accuser or their fami­ lies is deemed inadmissible. dividual who appears uncertain In separate justice systems, differences would also undoubtedly occur �rt the superiority of one's own in sentencing. Because "justice" is achieved in Aboriginal societies only when as uncertainty. Given the Abo­ harmony is restored to the community, not only the accused but also other :uth is well understood, one can people who have been or might be affected by the offence, particularly the , impossible for an Aboriginal victim, would have to be considered as well. In the Ojibway concept of 1e court in the matter of truth­ order, when a person is wronged, it is understood that the wrongdoer must is determined to a large extent repair the order and disharmony of the community by undoing the wrong ;ross-examination, the Aborigi­ done. In most cases, the responsibility is placed on the wrongdoer to com­ .e erroneous perception that the pensate the persons wronged. This concept of order makes the individual "hen in reality all that may be responsible for the maintenance of harmony within society. or acknowledging that another Reparation or restitution to the victim or the community in a way 1ed or different from his or her that restored balance and harmony to. the people involved would therefore be a primary consideration. The person wronged, whether bereaved or im­ t see, can result in differences in poverished, would be entitled to some form of restitution. In the eyes of e about "truth," "law" and "jus­ the community, sentencing the offender to incarceration, or worse still, lifferences in viewpoints about placing him or her on probation, without first addressing the issue of rec­ :, and how it should go about onciliation, would be tantamount to completely relieving the offender of tation process is a case in point. any responsibility for restitution of the wrong. But such is "justice" in the nation" would, in my view, be Western sense-at least from the Aboriginal perspective. Such action is viewed 1 Western society. Methods and by them as an abdication of responsibility and a total exoneration of the societies have, of course, devel­ wrongdoer. people. Belief in the inherent Individuals dependent on the accused in some way, such as spouses, lies that any person might have children, grandparents, grandchildren, aunties, uncles or cousins are also , if they wish to express them, involved, and from an Aboriginal perspective, care has to be taken that nal methods of dispute-resolu­ actions to control the offender do not bring hardship to those individuals. m to volunteer an opinion or "Justice" in Aboriginal societies would be relationship-centred and the con­ nt would be arrived at through sequences of a particular disposition on other individuals and on the com­ ause it is impossible to arrive at munity, as well as on the offender, would be considered. This is not to ,original Peoples would believe say that punishment of an individual in Aboriginal societies would never 182 MURRAY SINCLAIR PART V: ABORIGINJ occur, but punishment is likely to occur only if an accused has repeatedly ment, criticism and retribut failed to work with the community to restore peace and harmony and to systems. Adversarialism and< rehabilitate him- or herself. The orientation of Western criminal justice placed on harmony and the systems toward punishment has a long and entrenched history, and retribu­ human and non-human, witi tion is almost always demanded, even if not always given. his work Dancing with a Cho The differences between Aboriginal thought and the processes of the with the highly esteemed Ab Canadian justice system are profound. The Canadian justice system, like autonomy and individual fret other justice systems in the European tradition, is adversarial. When an decided on the basis of argum accusation has been made against an individual, legal counsel representing in honesty and integrity that plaintiff and defendant confront one another before an impartial judge or in itself and as an aim of soc jury. Witnesses are called to testify for or against the accused, that is, to value system that emphasize� criticize the actions of either the accused or another. munity and restitution for th In our existing systems, guilt and innocence (concepts that have no The same contradictiorn equivalent in most Aboriginal societies and therefore no equivalent words) justice system result in a heav are decided on the basis of only that evidence considered admissible accord­ and witnesses when they ente ing to established (and, many believe, archaic) rules and on the basis of the (giving adverse testimony), w argument that takes place between legal representatives. are antagonistic to an Aborig The fundamental thrust of the Euro-Canadian justice system is the avoid criticism and confronta guilt-determination process. The principle of fairness in determining �hether As Mr. Ross has pointed the accused is guilty is of the utmost importance to what we do as Judges. testifying, to give anything b1 This arises, one could easily conclude, because our criminal justice system events, appears to be the result developed froma society where wrongdoers were placed in stocks and ch�s, giving testimony face to face or flogged, or whipped, or drawn and quartered, or put to death, all m where in fact every effort set public, for any one of a large number of offences. This orientation led to confrontation." In Aboriginal concerns over ensuring that only those who were "trulyguilty" of the charges hostile, critical, implicitly ani brought against them should be subjected to the punishments being im­ precisely what our adversarial posed, for they were considered so severe. The adage "Better a guilty man Pleading is another area · go free than an innocent man be convicted" finds its justification in this system conflictwith Aborigin: history. have committed the deed with In Aboriginal cultures, the guilt of the accused would be secondary to unable to plead "not guilty" � the main issue. The issue that arises immediatelyupon an allegation of wrong­ truth, and contrary to a basic · doing is that "something is wrong and it has to be fixed." If the accused, A final example is the irr when confronted, admits the allegation, then the focus becomes "What ries that accused will display should be done to repair the damage done by the misdeed?" If the accused cause their understanding of co denies the allegation, there is still a problem and the relationship between of things includes the fortitud the parties must still be repaired. Because punishment is not the ultimate them, Aboriginal people may focus of the process, those accused of wrongdoing are more likely to admit Aboriginal people involved in having done something wrong. That is why, perhaps, we see so �any A?o­ and social oppression, combin riginal people pleading guilty. At the same time, to deny an all gat1 n whic emotion in the presence of stra :, ? � is "known" by all to be true, and then to go through the white man s conduct in court appearing to court" is often seen as creating more damage. In acknowledging their p, The concepts of adversarialism, accusation, confrontation, guilt, argu- children would be taught to afi .AIR PART V: ABORIGINAL PEOPLES, JUSTICE AND THE LAW 183 1ly if an accused has repeatedly ment, criticism and retribution are not in keeping with Aboriginal value :ore peace and harmony and to systems. Adversarialism and confrontationare antagonistic to the high value )n of Western criminal justice placed on harmony and the peaceful co-existence of all living beings, both :ntrenched history, and retribu­ human and non-human, with one another and with nature. Rupert Ross in t always given. his work Dancing with a Ghost2 points out that criticism of others is at odds 10ught and the processes of the with the highly esteemed Aboriginal values of non-interference, individual � Canadian justice system, like autonomy and individual freedom. The idea that guilt and innocence can be lition, is adversarial. When an decided on the basis of argument is incompatible with a firmlyrooted belief :lual, legal counsel representing in honesty and integrity that does not permit lying. Retribution as an end .er before an impartial judge or in itself and as an aim of society is a meaningless notion in an Aboriginal against the accused, that is, to value system that emphasizes reconciliation of the offender with the com­ another. munity and restitution for the victim. ocence (concepts that have no The same contradictions between Aboriginal values and the dominant therefore no equivalent words) justice system result in a heavy burden being placed on Aboriginal accused e considered admissible accord­ and witnesses when they enter the justice system. Accusation and criticism ic) rules and on the basis of the (giving adverse testimony), while required in the Canadian justice system, resentatives. are antagonistic to an Aboriginal value system that makes every effort to Canadian justice system is the avoid criticism and confrontation. fairnessin determining whether As Mr. Ross has pointed out, "refusal or reluctance to testify, or when tance to what we do as judges. testifying, to give anything but the barest and most emotionless recital of use our criminal justice system events, appears to be the result of deeply rooted cultural behaviour in which were placed in stocks and chains, giving testimony face to face with the accused is simply wrong ... [and] trtered, or put to death, all in where in fact every effort seems to have been made to avoid such direct fonces. This orientation led to confrontation." In Aboriginal societies, it may be "ethically wrong to say ,ere "truly guilty" of the charges hostile, critical, implicitly angry things about someone in their presence, to the punishments being im­ precisely what our adversarial trial rules have required." fhe adage "Better a guilty man Pleading is another area where the mechanics of the Canadian justice i" finds its justification in this system conflict with Aboriginal cultural values. Aboriginal individuals who have committedthe deed with which they are charged are often reluctant or accused would be secondary to unable to plead "not guilty" because that plea is, to them, a denial of the !ly upon an allegation of wrong­ truth, and contrary to a basic tenet of their philosophy. as to be fixed." If the accused, A final example is the implicit expectation of lawyers, judges and ju­ 1en the focus becomes "What ries that accused will display remorse and a desire for rehabilitation. Be­ ,y the misdeed?" If the accused cause their understanding of courage and their position in the overall scheme 1 and the relationship between of things includes the fortitude to accept, without protest, what comes to ,unishment is not the ultimate them, Aboriginal people may react contrary to the expectations of non­ ;doing are more likely to admit Aboriginal people involved in the justice system. Many years of cultural , perhaps, we see so many Abo­ and social oppression, combined with the high value placed on controlled ne, to deny an allegation which emotion in the presence of strangers or authority, can result in an accused's go through the "white man's conduct in court appearing to be inappropriate to his plea. In acknowledging their powerlessness before the Creator, Aboriginal :ion, confrontation, guilt, argu- children would be taught to affirm their dependence upon the Creator and 184 MURRAY SINCLAIR upon all of creation; to wait patiently and quietly, in a respectful manner, ABORIGINAL Cc to receive the mercy of the Creator. Many cultural traditions and ceremo­ nies are imbued with this philosophy. This attitude can easily be carried CHILD WELFJ over into Aboriginal behaviour within the justice system. One of the re­ AMERICAN Al searchers for the Aboriginal Justice Inquiry of Manitoba told us that in his effort to honour those pleading his case, he tries hard to agree to their re­ quests, to give answers that please, and not to argue or appear adversarial. NORMAN K. ZLi Judges and juries can therefore easily misinterpret the words, demeanour PROFESSOR, COLLEC and body language of Aboriginal individuals before them. UNIVERSITY OF SASI To require people to act in ways contrary to their most basic beliefs is not only a potential infringement of their rights; it is also, potentially, a deeply discriminatory act. Witnesses who do not testify directly, complain­ INTRODUCTION ants who do not complain vociferously and accused who do not behave "appropriately" or who show little emotion may find that they are "dealt This Conference has focused with" differently or achieve different results than those who react in ways ever, there is more to a justice expected by the system. Such culturally induced responses can easily be Aboriginal people have been misunderstood. Sometimes they are wrongly treated as contempt for the welfare agencies than by the court. Sometimes they result in a hearing that is less than fair and, far too from the area of criminal just often, they result in inappropriate sentencing. The exercise by Abori€ Clearly something must be done. Not only must we undertake re­ government includes their rig forms to the existing system to change the way we "do business" where Aboriginal Peoples view the r Aboriginal people are concerned, but it seems clear to me as well-as it right to rely upon customary became clear to my colleague Associate Chief Justice A. C. Hamilton dur­ laws recognized by the Canad ing the course of the work we did together on the Aboriginal Justice In­ tion of Aboriginal law has bee quiry of Manitoba-that we must also undertake reforms that allow and over child welfare. Many Al empower Aboriginal people to do justice for themselves. Aboriginal families has partial priate, alien laws on their co1 NOTES laws and traditional ways of de 1 A. C. Hamilton and C. M. Sinclair, Report ofthe Aboriginal Justice Inquiry of tion and strengthening of the Manitoba, 2 vols. (Winnipeg: Queen's Printer, 1991). One reason for the cone� 2 Rupert Ross, Dancing with a Ghost: ExploringIndian Reality (Markham, Ont.: fare system is the historically < Octopus, 1992). dren who have been removed f cies. 1 Aboriginal people belie, pends on stopping the remov; and returning those children v In attempting to gain co First Nations have chosen to Before turning to the America1 have been developed in Cana< child and family services, and< The delivery of child welf be understood within the cont CONTINUING POUNDMAKER AND RIEL 1 S QUEST PRESENTATIONS MADE AT A CONFERENCE ON ABORIGINAL PEOPLES AND JUSTICE

COMPILED BY RICHARD GOSSE JAMES YOUNGBLOOD HENDERSON ROGER CARTER

PURICH PUBLISHING SASKATOON,SASKATCHEWAN CANADA

THE COLLEGE OF LAW UNIVERSITY OF SASKATCHEWAN SASKATOON,SASKATCHEWAN CANADA