Canadian Justice/Indigenous (In)Justice - Examining Decolonization and the Canadian Criminal Justice System
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Journal for Social Thought 5(1) • March 2021
Canadian Justice/Indigenous (In)Justice
Examining Decolonization and the Canadian Criminal Justice System
Robert Giannetta
University of Toronto, Toronto, Ontario, Canada
robert.giannetta@mail.utoronto.ca
Canada’s criminal justice system (CJS) is plagued with issues from the overrepresentation of Indigenous peoples
to annual expenditures totalling billions of dollars. To alleviate these problems, there has been a push to reform the
CJS to better suit its objective to rehabilitate and reintegrate offenders, such as diversionary courts, increased use
of community supervision, and culturally-specific programming. However, reformist movements are not doing
enough to push the boundaries of criminal justice reform. Crafting policy solutions, which remain within the scope
of the current carceral landscape, stifles all discourse that calls for fundamental change. Incrementally reforming
the CJS forces public policy to tweak problematic aspects of the model but does not challenge the overall societal
and political purpose of the justice system. Ultimately, the reformist approach to the CJS maintains the status quo,
which disproportionally harms Inuit, Métis and First Nations people who have historically been over-represented
in the CJS. This is because the CJS is deeply rooted in colonialism and serves as a mechanism for the continued
subjugation and oppression of Indigenous peoples. Reforming the justice system to become more culturally
competent for Indigenous peoples is merely a façade to prevent questions of state sovereignty, legitimacy, and
Canada’s colonial origins. True reform calls for the decolonization of the CJS. In this paper, to achieve the Truth
and Reconciliation Commission’s Call to Action No. 42 (i.e., the recognition and implementation of Indigenous
justice systems), it will require both analysis and discussion of Canada’s past, present and future.
KEYWORDS: Criminal justice, Colonialism, Decolonization, Reconciliation, Canada
Introduction lowhead Institute’s Calls to Action Accountability Report,
2019a), the overarching focus of this paper will be on
. . . Call to Action No. 42: We call upon how Call to Action No. 42 can be implemented. This
the federal, provincial, and territorial gov- particular Call to Action was selected because of what
ernments to commit to the recognition and can be classified as the ‘carceral redlining’ of Indige-
implementation of Aboriginal justice sys- nous communities (Reece, 2020). The Canadian crimi-
tems in a manner consistent with the Treaty nal justice system systemically uses incarceration as a
and Aboriginal rights of Aboriginal peo- tool for social control, which in turn effectively draws
ples (Truth and Reconciliation Commission, red lines around racialized communities to be crim-
2015b, pg. 4). inalized and targeted for incarceration (Reece, 2020).
une 2020 marked the fifth anniversary of the 94 Calls Indigenous inmates have higher security ratings in
J to Action released by the Truth and Reconciliation
Commission (TRC). The TRC was created as part
of the Indian Residential Schools Settlement Agreement,
prison, are overrepresented in segregation and are less
likely to get paroled (Office of the Correctional Investi-
gator, 2020). At first glance of the TRC’s Call to Action,
it appears that it warrants a straight-forward and easily
with the principle to “contribute to truth, healing and
reconciliation” through listening and documenting the implementable response – recognize and implement In-
stories of residential school survivors and their families digenous justice systems. However, the subtext of this
(2006, Schedule “N”). As part of the process to redress Call to Action involves detangling the one-hundred
the legacy of residential schools and advance reconcili- and fifty plus years of colonialism and the need to
ation, the TRC published the 94 Calls to Action calling fundamentally reshape Canadian society. Indigenous
for changes to Indigenous child welfare, investments peoples and ‘Canadians’ alike live under the shadow of
into education, and the revitalization of Indigenous colonialism, and though it is mainly imperceptible, the
language and culture, among others (2015a). beliefs embedded within this concept directly impacts
Though arguments can be made as to the status Indigenous peoples daily.
and progress of each of the 94 Calls to Action (see Yel- Despite the years of work completed by the TRC,
https://ojs.lib.uwo.ca/index.php/jst/index 1Journal for Social Thought 5(1) • March 2021
many Canadians remain ignorant of Canada’s colonial ward from Canada’s colonialist history. The iterative
origins. They are removed, deliberately, or through nature of social structures that create and are created
complicity, from the current and long-term manifesta- by each other, like the CJS and the Supreme Court of
tions and implications of colonialism (Hardwick, 2018). Canada, the past has formed the structures we see to-
Suppose we start this learning process by merely un- day. In Beckman v. Little Salmon/Carmacks First Nation
packing the words “criminal,” “justice,” and “system” (2010) (a Supreme Court case involving the Crown’s
and how they relate to so-called Canada’s colonial ori- duty to consult Indigenous peoples within the context
gins. These concepts, deeply engrained in the social of modern Treaty agreements), Justice Ian Binnie shares
and political lexicon but seldomly questioned, are at this outlook when concluding, “the future is more im-
the heart of what Call to Action N0. 42 is asking of us. portant than the past. A canoeist who hopes to make
However, many questions remain unanswered, such progress faces forward, not backwards” (para. 10). This
as how do we define criminal? Does justice involve approach aptly captures why the CJS and the govern-
retribution and punishment or rehabilitation and rein- ment more broadly define what reconciliation has be-
tegration? Is the system one that incorporates and come. And subsequently, this ’clean slate’ approach to
focuses on the criminal? The victim? Or both? The reconciliation becomes increasingly problematic in the
etymological origins, the societal definitions, and colo- context of Call to Action No. 42. The need to recognize
nial underpinnings affixed to just these three words and implement Indigenous justice systems requires us
demonstrate the need to articulate what these concepts to look into the past as these systems existed prior
mean and the values they hold before we can begin to to colonial contact (Napoleon, 2016). The courts’ and
understand what it means to be on the path of recon- the government’s approach to continually push into
ciliation. Answering these questions and attempting the future and escape the realities of the past (Nichols,
to create a framework to implement Call to Action No. 2019) seems to be the reconciliatory framework within
42 requires looking into the past, present and future of which they are poised to operate. Yet this is not new;
the Canadian colonial project and its goals and impacts Canada’s mistreatment of Indigenous peoples begins
on Inuit, Métis and First Nations peoples. with settler efforts to unite the new colonies under one
The purpose of this paper is two-fold. First, it is nation, the Dominion of Canada.
to serve as a commentary linking Canada’s historical
The unification process to create one sovereignty
colonial origins and oppression of Metis, Inuit and First
required the deliberate derogation of Indigenous politi-
Nations people, the present repercussions of assimila-
cal systems and law whereby “colonialism inaugurated
tive policy and law, in particular, the use of the criminal
new forms of legal authority in spaces where Indige-
justice system to entrench colonial power relations, and
nous peoples already exercised jurisdiction” (McCreary,
the decolonization narrative that must be embraced
2016, p. 167). Indigenous peoples had legitimate and
to move towards Indigenous sovereignty and beyond
valid laws that they relied on for safety, peace and
the current iteration of the CJS. Secondly, the paper
order, but they were derided, dismissed or even crim-
articulates what is required to implement the Truth
inalized (Friedland, 2018). Such laws in Indigenous
and Reconciliation Commission’s Call to Action No. 42
communities can be found in unwritten conventions,
and the fundamental reshaping of Canadian society to
oral traditions, and customs; they are passed down
achieve this laudable goal.
by elders from generation to generation. And though
they were never formally codified, there was a consis-
The Past tent pattern of treatment when dealing with injustice
We must begin by grounding our understanding (Green, 1998). Rather than concerning themselves with
that the present-day issues plaguing Indigenous peo- the “value loss” associated with crime, such as stolen
ples and their communities stem from Canada’s colo- goods and property damage, Indigenous communi-
nial origins. As noted by fiction author William ties understood harm as the effect it had on relation-
Faulkner (1951), “the past is never dead. It’s not even ships (Ross, 2006). Thus, mending broken relationships,
the past” (p. 128). By cutting off the past from the restoring harmony, reconnecting with traditional val-
present, there lies the implication that Canada began ues, and strengthening community bonds were integral
dealing fairly with Indigenous peoples, but there is and foundational components of Indigenous law (Palys
no break between the two (Vowel, 2016). It is a tempt- and Victor, 2007). This stood in stark contrast to set-
ing and problematic perspective to use present actions tler law, which defined crime as violence against the
towards Indigenous peoples as a guide for moving for- state, a need to protect private property rights and
https://ojs.lib.uwo.ca/index.php/jst/index 2Journal for Social Thought 5(1) • March 2021
punishments were to be a deterrent (Pavlich, 2011). In- effects on Indigenous peoples. Through this legacy,
digenous law was viewed disparagingly by colonialists, the justice system continues to police and define the
who defined Indigenous law as merely ’customary’ and boundaries of Indigenous rights to maintain the state’s
distinctly inferior (Cunneen, 2014). Classifying Indige- sovereignty. Staples (1975) noted that the law was writ-
nous law as customary, was an imperialist concept used ten by white men, for the protection of white men, to
to invalidate Indigenous laws (Cunneen, 2014; Sheleff, be enforced by white men. Mobilizing the fledging
1999). justice system and enshrining assimilative policy (i.e.,
When the colonial justice system did consider In- the enactment of the Indian Act), the recently formed
digenous oral testimony as evidence (re Delgamuukw Dominion of Canada was able to solidify its author-
v. British Columbia, 1997), it was the system itself that ity and power to subordinate the Indigenous ‘other.’
determined the admissibility and validity of this evi- Reducing Indigenous legal traditions to be considered
dence. At the heart of the Royal Proclamation, a docu- ‘customary,’ then prohibiting both the ability to practice
ment that recognizes Indigenous rights, in the same their traditions and seeking dispensation for sovereign
breath, entrenches the British sovereign’s authority to criminality, was a deliberate and conscious effort to
define, encompass and protect Indigenous rights (Mc- restrict and oppress Indigenous peoples (Joseph, 2018).
Creary, 2016). This colonial paternalism that defines The inception of the Canadian colonial state, includ-
Indigenous rights is, to a large extent, determined by ing the creation of the Indigenous’ other,’ asymmetric
the justice system. As such, the practitioners within power relations and a subordination system, demon-
this colonial system are positioned to either challenge strates why implementing the Call to Action requires
or reinforce the notion that pre-settler contact, Indige- more than a legislative brushstroke or a court ruling.
nous societies had legal traditions. Though over-turned The creation of colonial systems of oppression has not
by the Supreme Court of Canada, the initial decision by remained as a mere footnote in Canadian history. Com-
Chief Justice Allan McEachern of the British Columbia pletely ignoring or disconnecting Canada’s historical
Supreme Court demonstrates this skewed perception. realities detracts from any possibility of achieving Call
In Delgamuukw v. British Columbia (1991), Chief Jus- to Action No. 42. The consequences of this ignorance
tice Allan claims that Indigenous ancestors had no do not remain in the past; they reverberate into the
written language, no horses or wheeled vehicles and present. The future is not a blank slate, full of the
quotes Hobbs stating that at its best, Indigenous life promise of the reconciliation yet to come; rather, it is
was “nasty, brutish and short.” intimately connected and rooted in Canada’s colonial
Homi K. Bhabha’s concept of “colonial ambivalence” origins.
reflects the courts’ view and recognition of Indigenous
life before contact. Colonial signifiers of authority, in
The Present
this case, the B.C. Supreme Court, acquired their power “Prisons do not disappear problems; they disappear
after “traumatic scenarios of colonial difference returns human beings” (Davis, 1998, p. 1). This quote by no-
the eye of power to some prior, archaic image or iden- table prison abolitionist, Angela Davis, encapsulates
tity” (Bhabha, 1994, p. 107). Chief Justice McEachern the current repercussions of colonialism on Indigenous
cites the difference between Indigenous peoples and peoples. Through the CJS, Canada has created a per-
settlers, implicitly using the ‘savages’ versus ‘civilized verse symbiotic relationship with Indigenous peoples
settlers’ discourse to justify the need for colonial power. as it routinely criminalizes the societal issues stemming
The construction of the uncivilized ‘other’ allowed the from colonialism. The roots of the current ‘Indigeniza-
colonial government to assert its authority to enforce tion’ of Canada’s correctional system (Office of the
a system of subordination and assimilation on Indige- Correctional Investigator, 2020) can be found in colo-
nous peoples. Colonial ambivalence ensures that the nial dispossession and the social and historical contexts
colonial power (i.e. the Canadian government and the of Indigenous ‘crime’ (Cunneen, 2014). Repeated at-
courts) remains mutable to changing historical and tempts to decolonize the justice system are wrought
societal tides by citing stereotypical and ‘probabilis- with either incremental improvements or none what so
tic truths’ to maintain asymmetric relations of power ever. Calls to reform the justice system to be more cul-
(Bhabha, 1983). turally sensitive towards Indigenous people deliberate
The diminishment of Indigenous legal traditions refrains from asking the crucial question: why does the
and the supplanting of the colonial justice system is system need to exist?
partly responsible for the ongoing and detrimental Call to Action No. 42 does not ask that Indigenous
https://ojs.lib.uwo.ca/index.php/jst/index 3Journal for Social Thought 5(1) • March 2021
justice systems operate within the colonial carceral further from reality. As noted by the Office of the Cor-
landscape; instead, they are recognized as distinct but rectional Investigator, though Indigenous peoples only
equal systems. Ideas to reform the justice system to account for approximately 5 percent of Canada’s pop-
be more ‘culturally-specific’ tends to perpetuate rather ulation, Indigenous offenders represent 30 percent of
than resist the existing model (Pavlich, 2011). Indige- the total federal prison population (2020). The ‘Indige-
nous scholar Taiaiake Alfred (2005) succinctly captures nization’ of Canada’s correctional system is a “national
this tension when saying, “structural change negotiated travesty” (Office of the Correctional Investigator, 2020,
in a colonial cultural context will only achieve the fur- p. 20) and undeniable proof that reforms implemented
ther entrenchment of social and political foundations to address Indigenous-specific concerns are not work-
of injustice, leading to reforms that are mere modifica- ing. The purported easy absorption of decolonization
tions to the pre-existing structures of domination” (p. within the Canadian criminal justice framework is part
180). Take, for example, Correctional Service Canada’s of settlers’ need to ‘reconcile’ both colonial and In-
use of healing lodges. These lodges operate within pen- digenous justice systems; this is part of the broader,
itentiaries (a colonial institution) after an Indigenous relentless pursuit and "desire to not have to deal with
offender has been sentenced (through a colonial justice the Indian problem anymore” (Tuck and Yang, 2012,
system) for committing a crime (defined by the colonial p. 9). Beyond being a blatant fallacy, merging the two
political system) caused by underlining social issues systems does not remove the colonization deeply em-
(stemming from colonialism). Criticisms of CSC’s use bedded with the CJS. The inability to draw the linkage
of healing lodges are not new. In 2012, the Office of the between colonization and why Indigenous-specific pro-
Correctional Investigator tabled a report titled, Spirit gramming does not work within the confines of the CJS
Matters: Aboriginal People and the Corrections and Con- is, in part, the reason why Call to Action No. 42 has
ditional Release Act. In the report, former Correctional yet to be implemented. It should be noted that though
Investigator Howard Sapers noted that only a small efforts have been made to recognize and address the
percentage of Indigenous inmates could access healing linkage between Canada’s colonial origins and its im-
lodges, and intake is limited to those with a minimum pact on Indigenous peoples (see Section 718.2(e) of the
security classification (2012). The minimum security re- Criminal Code, R. v. Gladue [ [1991] and R. v. Ipeelee
quirement prevents Indigenous inmates from accessing [2012]), they do little to challenge the pre-existing struc-
healing lodges because they are routinely overclassified tures of domination.
as medium or high risk (Leitch, 2018); according to
In the landmark Supreme Court of Canada case, R.
Public Safety Canada, only 17.7 percent of Indigenous
v. Gladue (1999), the court recognized that Indigenous
inmates are classified as minimum security (2020). The
peoples face racism and systemic discrimination and
incessant need to confine ‘reform’ within the carceral
deserve special, culturally specific considerations con-
landscape goes hand-in-hand with how healing lodges
cerning sentencing. Two issues arise as a consequence
are managed. Lodges can be run solely by CSC or
of this ruling: 1) the Supreme Court of Canada (a colo-
by partners or community organizations. If the lat-
nial institution) decided which sentencing considera-
ter option is chosen, Indigenous community partner
tions should be contemplated when imposing a puni-
organizations must sign an agreement with CSC un-
tive sanction, and 2) for a Gladue Report to be prepared,
der Section 81 of the Corrections and Conditional Release
one must plead guilty under ’Canadian’ law. Court
Act (1992) and are dependent on CSC funding to run
victories do not consider the fullness of Indigeneity; in-
the lodges (Correctional Services Canada, 2019). Con-
stead, Indigeneity must fall and be contained within the
trol of Indigenous rehabilitation remains under CSC’s
natural colonial order (McCreary, 2016). Besides, sim-
purview, where fundamental changes to the status quo
ply identifying common Gladue factors among Indige-
are never actualized. This attempt to graft Indigenous
nous peoples obscures the extent to which “Gladue”
traditions onto the justice system is a scapegoat tactic
factors are a direct result of colonialism (Maurutto and
when questions arise about what the justice system
Hannah-Moffat, 2016). This issue is compounded by
is doing to address the needs of Indigenous peoples
the fact that legal actors (judges and lawyers) often lack
better.
the expertise required to “identify and situate social
If the CJS is responding to the Indigenous-specific disadvantages within a history of colonialism and dis-
concerns by incorporating Indigenous justice remedies crimination” (Maurutto and Hannah-Moffat, 2016, p.
into the system, Indigenous ‘criminality’ should log- 459). Though Gladue Reports begin to sketch the link-
ically be decreasing. Unfortunately, this cannot be age between colonialism and the effects on Indigenous
https://ojs.lib.uwo.ca/index.php/jst/index 4Journal for Social Thought 5(1) • March 2021
peoples, it appears to have little to no impact on reduc- community. Those are the values that we all
ing the concerning trend of the ‘Indigenization’ of the accept, and we all agree to, but in my world,
penal system. Since 2010, the incarceration of Indige- we talk in terms of deterrence and denunci-
nous peoples has increased by 43.4 percent, whereas ation and making examples of. If I was to
the non-Indigenous incarcerated population has de- suggest a healing circle that I wanted guid-
clined by 13.7 percent over the same period (Office of ance on how many years I should assign for
the Correctional Investigator, 2020). bad conduct, they would rightly look at me
If a Gladue Report is prepared – though they dispro- like I had two heads and probably leave the
portionally are not (Herbert, 2017) – diverting Indige- room because that’s what they would not
nous people into ‘alternative’ punishment models, such be there for. What they would be there for
as sentencing circles, only transpire within the confines is the deeper and better good of the society
of Canadian law (Green, 1998). It is at the discretion and the accused (Blue Thunderbird Man as
of the judge whether sentencing circles are struck, and cited in R. v. Holmes, 2018, para. 5).
ultimately which sentence is imposed on the offender
(Green, 1998). The CJS, in a masqueraded attempt to The status quo of transposing Indigenous legal tradi-
‘reconcile’ Indigenous legal traditions, repurposes these tions onto the colonial justice system is simply not
legal traditions to contribute to government priorities enough to address the dichotomist relationship be-
and agendas, specifically to maintain public safety and tween the two. As mentioned, Call to Action No. 42
security. Programs developed by the state inevitably cannot be implemented through a reformist approach
creates tension between these interventions and gen- that attempts to recognize and affirm Indigenous jus-
uine Indigenous approaches because these programs tice within the colonial order. They are irreconcilable
are inorganic to Indigenous peoples, their communi- systems. What then are we supposed to do? Where
ties and their needs and experiences (Cunneen, 2014). can we go from here?
By implementing Indigenous-specific programming,
the state adopts the narrative that the colonial system, The Future
which created the problems, is best suited to fix these
It is tempting and easy to cite theoretical frame-
issues. Incorporating Indigenous law and legal tradi-
works, such as “decolonization,” “self-government,”
tions into the justice system is a tactic used by the state
and “legal pluralism” as a roadmap to actualizing Call
to maintain its power and control without fundamen-
to Action No. 42, but what do these processes entail?
tally changing anything. Incremental, policy-oriented
As we have seen, much of ’criminal justice reform’ is
justice remedies amount to nothing more than a po-
superficial and deceptive; it is dangerous because it is
litical distraction strategy that allows for the colonial
designed to silence calls for genuine change (Karakat-
administration to frame and control the discourse of
sanis, 2019). It is essential to begin this discussion
reconciliation (Corntassel and Holder, 2008).
of moving forward by noting a significant distinction
The presence of the self-perpetuating system and its
between self-administration and self-government. Un-
consequences is not lost on judicial actors, as demon-
der self-administration, the local government is usually
strated in Alberta’s Queen Bench in 2018. In R. v.
nothing more than a bureaucratic shell and, ultimately,
Holmes (2018), Justice James Langston noted in his
an extension of the colonial power’s administrative
decision that, “this is an Aboriginal offender. She is
apparatus (Rae, 2009). Under this approach, Indige-
in a system which is imposed upon Aboriginal people.
nous claims to self-determination have no relevance
Our history, in relation to Aboriginal people, is one of
to criminal justice reform (Cunneen, 2014) because ju-
deliberate destruction” (para. 2). Though there is an
risdictional control over the administration of the jus-
attempt to incorporate Indigenous legal traditions into
tice system remains solely in the hands of the colonial
the proceedings, Justice Langston is admonished by
power. Legal decision making needs to emanate from
Blue Thunderbird Man, an Indigenous elder, as there
within Indigenous communities to reflect their legal
is a “fundamental disconnect” between the two legal
traditions (Borrows, 2010). The emanation of legal au-
traditions (R. v. Homes, 2018).
thority from Indigenous communities is the core “ask”
. . . This community would talk in terms of in Call to Action No. 42. Indigenous peoples cannot re-
healing, reconciliation, taking responsibility claim their legal institutions within the confines of the
for what you’ve done, and moving on in a colonial power dynamics because the colonial order is
good way with the help and guidance of the in place to disempower and disenfranchise Indigenous
https://ojs.lib.uwo.ca/index.php/jst/index 5Journal for Social Thought 5(1) • March 2021
peoples. Indigenous forms of justice exist and pre-date and hands-on instruction where students, under the
colonialism, but as demonstrated, they needed to be tutorship and supervision of elders, have to recite song
derided and diminished to cement colonial control. and story principles, teachings and rules to demon-
The commonality interweaved throughout diverse strate their competency in traditional law (Borrows,
Indigenous communities, and legal concepts are that a 2016).
holistic, healing approach must be undertaken to repair Though just a snapshot of the range of Indigenous
damaged relationships. The parties to the crime, not legal systems that exist in Canada, a future that recog-
the state, play a prominent if not an overriding role in nizes the full scope of Call to Action No. 42 demands
the pursuit of justice through relationship restoration. that Indigenous legal concepts must be recognized and
Indigenous legal traditions fundamentally differ from affirmed on their terms as having full force and ef-
that of Canadian law, as it takes a more conciliatory fect within Indigenous communities and in Canada
approach that emphasizes the restoration of peaceful more broadly (Borrows, 2010). The incremental and
relationships (Green, 1998) as opposed to “deterrence policy-oriented recognition of Indigenous legal sys-
and denunciation" (R. v. Holmes, 2018). The Tlin- tems, such as the restorative justice practices being
git community in Yukon take a healing, non-punitive co-opted by colonial carceral institutions, detracts from
approach when dealing with criminal cases of sexual Indigenous self-determination efforts. Rather than en-
assault. Rather than sentencing the individual to a gaging in a dialogue geared towards returning juris-
prison sentence, they attend weekly “teaching circles” dictional control of justice institutions to Indigenous
run by community elders where even the victim plays a peoples, the colonial state frames the discourse of rec-
role in the healing process (Ross, 2006). This approach onciliation such that it remains within the current,
to criminality uses the principle that for healing and state-controlled justice system (Corntassel and Holder,
teaching to occur, one must keep an eye on the past and 2008). To achieve genuine self-government, significant
the future, that is, to understand how things came to be jurisdictional power must rest in the hands of Indige-
and how to design measures with the greatest promise nous peoples through social institutions of their design
of making those involved healthier (Ross, 2006). and are accountable to their citizens (Rae, 2009). Self-
Cree and Ojibway peoples’ forms of justice are char- government does not need to resemble any particular
acterized by community decision making using a holis- form but rather involves a nation’s ability to choose
tic approach (Green, 1998). Before colonization, deviant its structures, laws, mechanisms and institutions (Rae,
behaviours were regulated by ostracism, shame, and 2009).
compensation of the victim’s loss, even if only symbolic The process of Indigenous self-government and, in
compensation was possible (Green, 1998). The accep- turn, decolonization, involves the removal of the justice
tance of the gift signified conflict resolution and the framework, which only recognizes Indigenous laws
restoration of community harmony (Milward, 2014). at the goodwill of the sovereign (Borrows, 2002). At
Elders taught the traditional teachings and warned of- its core, decolonization requires that Indigenous com-
fenders of their behaviour on behalf of the community, munities subsume ownership of their identity, control
which often involved mediating dangerous disputes over its social, political and economic institutions and
(Green, 1998). The purpose of the justice system was to its land and resources (Shepherd and McCurry, 2018).
restore peace and equilibrium within the community Control over Indigenous legal traditions is mandatory
and reconcile the accused with their conscience, and to “get to a place where Indigenous peoples in Canada
right the wrongs caused to the victim or the family are in control over their destiny and making their own
(Green, 1998). decisions about the future” (Trudeau, 2018, para. 4).
Anishinaabe law looks at the natural world to glean An effort to decolonize a colonial institution occurred
lessons on encouraging and regulating behaviour to with the passing of An Act respecting First Nations, Inuit
resolve disputes, “gikinawaabiwin” (Mills, 2017). The and Métis children, youth and families (2019). Primar-
heart of Anishinaabe legal reasoning draws upon this ily, the Act affirmed First Nations, Inuit and Métis
perspective: parallel situations are correlated, dissim- peoples’ rights to exercise jurisdiction over child and
ilar ones are distinguished and “the environment be- family services (Government of Canada, 2020). Though
comes the legal archive that practitioners read and use the passing of the Act was a positive step forward in
to regulate their communities” (Borrows, 2017 as cited the self-governance process, if an Indigenous group,
in Mills, 2017, p. 12). Legal traditions of the Anishi- community or people chooses to exercise its jurisdic-
naabe people were intimately tied with the land, water, tion over child and family services, then according
https://ojs.lib.uwo.ca/index.php/jst/index 6Journal for Social Thought 5(1) • March 2021
to section 20(1) of the Act, Indigenous laws will not will mark our country as progressive and open to legal
prevail over federal or provincial laws (Yellowhead In- guidance from the best [Indigenous] traditions or as
stitute, 2019b). Similar to Indigenous justice systems, oppressively fundamentalist and frozen in our orien-
Indigenous laws related to the child welfare system tation to law” (Borrows, 2010, p. 283). Only then will
are constrained according to what is found acceptable Call to Action No. 42 be achieved.
to the colonial order. Decolonization cannot only be
grafted onto pre-existing frameworks or legislation as Reflections
this easy absorption, adoption, and transposition is yet
As a settler myself, I often return to the etymology
another form of colonial appropriation (Tuck and Yang,
of the word reconcile and how it applies to my under-
2012).
standing of Inuit, Métis, First Nations peoples and the
Decolonization does not involve the simple grafting CJS. Its primary definition, one used within Canada’s
of Indigenous legal traditions onto the colonial justice path towards reconciliation, is to restore friendly rela-
system as we have now. Instead, it consists of the tions between, cause to coexist in harmony or make or
separation of the two and the inevitable creation of a show to be compatible. However, though often omit-
legally pluralistic society. Decolonization requires a ted, another definition best captures the current state
degree of incommensurability as it requires a change in of affairs; make something acceptable to a disagreeable
the world’s natural order – it implicates and unsettles or unwelcome thing. In this definition, and in Canada,
everyone (Tuck and Yang, 2012). Though not truly a ’reconciliation’ is used to tell Indigenous peoples to
display of decolonizing, the judiciary, similar to R. v. reconcile with the status quo. “Reconciliation does not
Holmes (2018), has come to recognize that a fundamen- dictate any particular substantive outcome” (Coldwater
tal shift in how ’justice’ is dispended is in order. In R. First Nation v. Canada, 2020, para. 53). We must admit
v. Pelletier (2016), Justice Nakatsuru articulates the ide- that “the settler knows perfectly well that no phrase-
ology embedded within the concept of decolonization ology can be a substitute for reality” (Fanon, 1963, p.
when he recognizes that the courts can no longer accept 45). Applying reconciliation to the Canadian CJS is
the status quo. Referring to the defendant, Josephine merely, and quite frankly, an unreconcilable concept.
Pelletier, Justice Nakatsuru stated, “by some deliberate The TRC’s Call to Action No. 42 demands that Indige-
policies and laws of our nation...you are as much as nous justice systems be recognized and implemented
a victim as an offender. . . we all share the blame for in Canada, not merely operate within the confines and
what you have become and what you have done” (R. to the discretion of the colonial justice system.
v. Pelletier, 2016, para. 12, 15 & 21). Ultimately, Justice We can no longer be complacent that piecemeal
Nakatsuru sentenced Josephine Pelletier to serve just legislative reforms and legal challenges will be the so-
one day. The lofty goal of decolonization starts with a lutions to dismantling the system (Alexander, 2020).
single step. If the judiciary was filled with individuals There needs to be an understanding that the historical,
like Justice Nakatsuru, this process might occur faster colonial origins of the justice system endure and mani-
than at the current glacial pace. fest in the present day, and the consequences are dis-
Nevertheless, though this is a laudable goal, decolo- proportionality borne by Indigenous peoples. Not ac-
nization must occur outside the colonial justice system, knowledging nor tackling the inexplicable link between
first and foremost. “After all, dismantling the sys- colonialism and its purpose to assimilate and oppress
tem. . . is not a legal battle for lawyers. It is fundamen- Indigenous peoples will result in the “decolonization-
tally a political one. It is about power” (Karakatsanis, lite” of the CJS. The system will claim that it reconsti-
2019, p. 10). The congruent goals of self-government tuted itself to address all the critiques lobbed at it, such
and decolonization cannot occur in the courtrooms of as becoming more culturally sensitive to Indigenous
the Canadian justice system as it is fundamentally built peoples, but “we must not be seduced into believing
to disempower Indigenous peoples. To truly decolonize that improving the system is the same as dismantling
law, Canadian law and its foundational divisions must or transforming it” (Alexander, 2020, p. xxxvii).
be displaced to implement Call to Action No. 42 and Attempting to decolonize the justice system from
ultimately recognize the inherent jurisdiction of Inuit within is an innately flawed premise, as the title of
and Métis and First Nations peoples’ laws. Canada can Audre Lorde’s famous essay succinctly articulates,
recognize, affirm and apply Indigenous legal traditions “the master’s tools will never dismantle the master’s
alongside the colonial justice system, or we can choose house” (1984). The parallel goals of Indigenous self-
to deny historical reality. “The consequences of this government and decolonization require that the process
https://ojs.lib.uwo.ca/index.php/jst/index 7Journal for Social Thought 5(1) • March 2021
be accountable to Indigenous sovereignty and futurity Canadian law has and will continue to be used to strip,
(Tuck and Yang, 2012). If the courts are allowed to police, and define the boundaries of Indigenous rights
define the extent and applicability of Indigenous legal to benefit the rest of Canada (Vowel, 2016). Forcing
traditions or somehow acknowledge the effects of colo- Indigenous peoples to fight for and practice their legal
nialism (re R. v. Holmes, 2018; R. v. Pelletier, 2016), it traditions in a colonial system is nothing but a farce
remains to be seen how we are genuinely unsettling that causes Indigenous peoples to participate in their
the status quo. Throughout this paper, it has become mental colonization (Cunneen, 2014).
apparent that there must be a fundamental shift in how Beginning at Canada’s colonial origins and connect-
we discuss and dismantle the current colonial justice ing the impacts of colonialism on Indigenous peoples
system. This is a profoundly human project that re- allows us to glean lessons from our collective past and
quires each of us, especially those who are not directly present and apply them to move towards a better fu-
impacted, to evaluate and reconsider our complicity ture. This future recognizes that unsettling the status
in the continued operation of the oppressive criminal quo begins by genuinely embracing the process of de-
“injustice” system. We must examine the purpose of colonization. As Pam Palmater (2020) recently said,
the CJS, why it looks and works the way it does, who it “when you dance around the status quo, you preserve
harms and how it harms them. To quote former United it. When you preserve the status quo, you preserve vio-
States public defender Alec Karakatsanis (2019), “we lence against Indigenous people.” With calls to defund
must employ the language of life against the language and abolish the police gaining more and more traction,
of bureaucracy – songs instead of shackles, poems in- we are poised politically and socially to fundamentally
stead of police reports” (p.4). alter how the CJS operates. Continually tinkering along
the margins vis-à-vis criminal justice reforms fails to
Conclusions contend with the larger issue that the Canadian CJS is
Canadians often view the CJS as neutral and fair not broken, rather it is doing what it was designed to
in its application. Yet, it is abundantly clear that there do; to criminalize, oppress and subjugate Indigenous
is a substantial gap in equality before the law when it peoples.
comes to Indigenous peoples. Returning to the ques- The recent Supreme Court of Canada case, R. v.
tion posed at the beginning of this paper, “what is the Chouhan (2020), is proof that the CJS is missing the
‘criminal justice system’ and how can this be reconciled metaphorical forest through the trees as it relates to
with the Truth and Reconciliation Commission’s Call Indigenous peoples. In 2018, former Federal Justice
to Action No. 42, there has to be an understanding Minister, Jody Wilson-Raybould, introduced Bill C-75
that there is no break between Canada’s colonial past, that amended the Criminal Code to abolish peremp-
present and future. The ongoing legacy of colonialism tory challenges, among other changes (Department of
has not ceased with the colonial justice system’s at- Justice, 2019). The amendment to the Criminal Code
tempt to integrate Indigenous legal traditions without resulted from the public backlash that an all-white
addressing why Indigenous people are overrepresented jury acquitted a Saskatchewan farmer of the murder
in the system in the first place. Removing the specific of a 22-year-old Indigenous man, Colten Boushie (Ste-
historical and political dimensions and individualizing fanovich, 2020). Critiques argued that defence coun-
the characteristics of ’criminality’ deliberately omits the sel used peremptory challenges (a legal procedure to
social, economic and political relations that lie at the dismiss potential jurors without reason) to exclude
root of Indigenous marginalization (Cunneen, 2014). It all visibly Indigenous jurors (Warick, 2018). In R. v.
becomes apparent that Indigenous jurisdictional gains Chouhan, legal groups, including associations represent-
regarding justice are construed as a threat to federal ing Black, Asian and Muslim lawyers, argued that the
sovereignty and must be adamantly resisted (Law Com- abolishment of peremptory challenges does not tackle
mission of Canada, 2008). This is seen through the dis- systemic racism in the jury selection process (Gallant,
mal pace of the progression of Indigenous justice (Law 2020). As contended, peremptory challenges prevent
Commission of Canada, 2008) and the ways in which people with a perceived racial bias from serving as
the criminal justice system merely co-opted Indigenous jurors; in a system where, jury pools are significantly
legal principles. Rather than meaningfully engage with white and Black, Indigenous and people of colour re-
Indigenous legal traditions to rectify the root causes of main over-represented as an accused person (Gallant,
Indigenous marginalization, Canada continues to use 2020). The latter portion, the overrepresentation of In-
the law to prevent the usurping of its sovereign power. digenous peoples in the CJS, is the forest I speak of.
https://ojs.lib.uwo.ca/index.php/jst/index 8Journal for Social Thought 5(1) • March 2021
In 2019-2020, only 3.4 percent of cases proceeded to a view, 9, 465-489.
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supreme-court-hearing-peremptory-challenges- I would like to extend my sincerest thanks to my part-
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%20Canada,Charter%20of%20Rights%20and%20 this paper through its multiple iterations to continually
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Author Biography
prime-minister-house-commons-recognition-and-
implementation-rights-framework. Robert (Rob) Giannetta completed his Master of Public
Truth and Reconciliation Commission. (2015a). Hon- Policy at the University of Toronto and his Bachelor of
ouring the truth, reconciling for the future: Sum- Social Science in Criminal Justice at Humber College.
mary of the final report of the Truth and Recon- He is passionate about criminal justice, Indigenous
ciliation Commission of Canada. Retrieved from: and social policy, especially when the three intersect.
http://www.trc.ca/assets/pdf/Executive _Sum- As a student, he produced several episodes for the
mary_English_Web.pdf. Beyond the Headlines radio show, most notably on
Truth and Reconciliation Commission. (2015b). gun violence in Toronto and solitary confinement in
Truth and Reconciliation Commission of correctional institutions, when he interviewed Senator
Canada: Calls to action. Retrieved from: Kim Pate. Rob has held various government positions,
http://trc.ca/assets/pdf/Calls_to_Action_English including with the Office of the Auditor General of
2.pdf. Ontario, and most recently, the Ministry of the Solici-
Tuck, E., & Yang, K.W. (2012). Decolonization is not a tor General’s Ontario Forensic Pathology Service. In
metaphor. Decolonization: Indigeneity, Education & his spare time, he enjoys landscape and nature pho-
Society, 1(1), 1-40. tography, catching up on the latest policy news and
Warick, J. (2018, February 4). Stanley trial ex- tech, and providing volunteer research support for the
poses problems with jury selection, say le- Toronto Prisoners’ Rights Project.
gal experts. CBC News. Retrieved from:
https://ojs.lib.uwo.ca/index.php/jst/index 11Journal for Social Thought 5(1) • March 2021 https://ojs.lib.uwo.ca/index.php/jst/index 12
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