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Seven (Separate) Values

Tuesday February 11, 2014

Good morning, Your Honour.

I do apologize for being late – I was just admiring those beautiful paintings that are hanging out in the hallway. Yes, that’s right, there are seven, one for each of the Grandfather Teachings. Hard to imagine more inspiring values, isn’t it?
Courage, Truth, Respect, Love, Honesty, Wisdom, Humility.

Or, as a Nishnaabeg might know them: Aakde’ewin, Debwewin, Mnaadendiwin, Zaagidewin, Gwekwaadiziwin, Nbwaakawin, Dbadendiziwin.

I do beg your pardon, Madam Reporter. You’ll just have to bear with me. Anyway, Your Honour, although I can’t say I understand the history and importance of these values in the Nishnawbe-Aski Nation, you’ll probably agree with me that they aren’t quite the same principles that we use in our Canadian justice system.

Well, this got me to thinking, what are our principles? I know we must have some. For the sake of balance, let me propose seven:

Equality

All people must be held to the same rules, and granted the same rights. Often symbolized as a blindfolded woman, this is supposed to make sure that the law treats everybody the same, no matter what they look like, what culture they belong to, or how much money they make. But it kind of makes you wonder why rich people always hire those fancy lawyers...

Individuality

Canadian justice places all its weights and entitlements in the laps of individuals, setting them apart from their families, communities, and cultures. The prisoner’s box, in other words, can be a very lonely place. Defence lawyers help people through this ordeal by maximizing their legal protections and minimizing the burdens the system might force upon them, and also by telling the court about their background, circumstances, and future prospects. Ultimately, however, in the Canadian system, every man or woman is an island.

Adversarialism

Canadian justice depends on the participation of people directly affected by a conflict, but does so in a way that encourages opposition. In a system focused entirely on the responsibility of offenders, all other participants (including victims) become potential witnesses for the prosecution or defence, and can even be forced to answer questions in court. The accused person him- or herself, by contrast, is granted the absolute right to remain silent. All they must indicate is a plea – guilty or not.

Rules – Evidence and Relevance

Canadian law is all about rules, which regulate every aspect of the stories that are told in court – how investigations are conducted, what witnesses can say, and the kind of decisions that judges can make. 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 us to focus in on what the rules say is ‘relevant’ to a particular issue (usually, whether or not a person can be found guilty), but even when a court has closed its case, the actual people involved may be struggling with questions that were never answered – or even asked.

Proof

Canadian justice trumpets 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, the system can still lean heavily upon people accused (but not yet convicted) of wrongdoing. Defendants will often 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. In practice, well... that’s the subject for another column.

Proportional Punishment

Once guilt is established – either after the rituals of a trial or a defendant’s simple admission – the Canadian justice system promises to respond to wrongdoing by inflicting a just measure of pain upon offenders. While rehabilitation is upheld as an important factor, punishment – in other words, jail – remains its most basic moral response. 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.

Hierarchy

While the parties to a case (on their own or through legal representatives) 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 supposed to consider the perspectives of those involved in conflict or wrongdoing, they are not there to cultivate consensus, or ensure that everybody (heck, anybody) is satisfied with the result. As well as deciding cases based on the facts, judges have to apply the law that is made for them by politicians and higher-level courts. This means that, even if they think a certain punishment may be inappropriate in the case before them, they still have to impose it if the Canadian Parliament tells them they have to.

Yes, Your Honour, I do realize that there’s nothing ‘wrong’ with these principles. If we truly lived up to them all, they might even amount to something we call justice. But I have to ask, how well do our values reflect, and how well can they facilitate, the Seven Grandfathers? What does it mean, for example, to uphold truth or honesty in a system that tells people to be silent, or restricts what they can and can’t say? 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?

Sorry, Your Honour. I know you’re supposed to be asking the tough questions here, not me. But maybe the justice we think we’re doing in the Nishnawbe-Aski Nation, if it is based on such different values, isn’t really doing the Anishinaabe much justice at all.

Have a question for our columnist related to law issues in northern Ontario?
E-mail him at: smowen@tbaytel.net

Simon Owen is a lawyer at Beamish and Associates in Sioux Lookout, and practices primarily in the areas of criminal defence law and community justice initiatives. Most of the people and communities he serves are members of the Nishnawbe-Aski Nation, who continually inspire and challenge him to find justice both within and beyond (or in spite of) the Canadian court system. Simon holds law degrees from the University of Victoria and the University of British Columbia, where his thesis work focused on moral and cultural communication in sentencing.


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