This paper seeks to generate further understanding of Indigenous knowledge, methods, and laws relating to Indigenous restorative justice as a means to consider how we might better resolve various forms of disputes and reinvent versus revise Canada's criminal justice system. It also considers some of the ways in which funding and programming decisions of the state might obscure and perhaps even deepen the disparity in the relationship between Canada and Indigenous Peoples. Through various means, such as the use of indicators to support government agendas as well as theories of retribution and proportionality, the criminal justice system continues to be a site of ongoing colonialism. This paper considers how we might engage in decolonization by making more room for the holistic healing found within Indigenous models of restorative justice.
CONTENTS I. Coyote Gets a Name II. Overview III. Defining Restorative Justice & Diversion IV. Biidaaban: Some Context for Restorative Justice Initiatives V. Debwewin as Common Ground VI. Painting Pictures by Numbers VII. Restorative Justice & Indicators VIII. Colonialism Came ... And Settled In IX. Coyote's Imagination, the Canadian Criminal Justice System & Punishment X. Addressing Overrepresentation through the Criminal Justice System? XI. Some Reflections I. COYOTE GETS A NAME (1)
In a time before the people came, plants grew in abundance. Trees stood close to each other and grew so high they touched the clouds. One day, messengers called all of the four-legged, winged ones, crawlers, diggers and swimmers to gather at a great lake by the forest. When the animals congregated, a voice spoke. It was a powerful voice that travelled through all of the plants and trees--the original surround-sound. The animals were told people would arrive soon and would want to know what to call them. Everyone at the gathering was instructed to return to the lake at sunrise, when one by one they would be invited into a great lodge and given a name.
Upon hearing this, Coyote jumped up and down with excitement. He spent the remainder of the day bragging to all who would listen that he was going to get a new name. Coyote decided he would be called Grizzly Bear, leader of the mountains. But as he meandered through the forest greeting other animals, he changed his mind and insisted on the name Salmon, chief of the swimmers. Further on, he declared he would be known as Owl, master of the night sky. As dusk came to the forest, Coyote met up with his little brother, Fox. Fox told Coyote that all of the animals were already calling him a new name. Coyote's chest swelled with pride. Fox told his big brother that he was being called Fool. Hiding his hurt feelings, Coyote laughed and told Fox that it did not matter because he would be the first into the lodge and would be given a spectacular new name that would be the envy of all.
Ignoring Fox--as usual--Coyote ran through the forest telling everyone he was staying up all night to be first in line at the lodge. As the moon rose, Coyote lounged around a fire. Soon, his eyes grew heavy and Coyote slept, dreaming of names. He woke with a start and realized the sun was high. Panicked he loped to the lodge and without waiting for an invitation, ran inside. He asked to be called Grizzly Bear, but that name was taken at dawn. He proposed Salmon. It too had already been given. Coyote hung his head when he was told that Owl was also gone.
The voice told Coyote his name was the only one left. If he were named Grizzly, the people would look for him in the mountains, but not in the plains or forests. If he were named Salmon, people would look to catch him in the water and not see his beautiful, bushy tail. The name Owl would mean Coyote's gorgeous coat would be missed in the sunlight while people looked to the trees at night. But most importantly, Coyote was told to keep the name Coyote because it came with two gifts meant only for him. First, he would be able to create whatever he could imagine. Second, he would be able to come back to life after he died. Coyote was so thrilled to have been given these gifts he forgot all about wanting a new name and bolted out of the lodge. Coyote was soon very busy. He ran through the forest creating a world with his imagination, preparing things for the people to come.
The relationship between Canada and Indigenous Peoples (2) continues to be fraught with difficulties. (3) Yet, approximately twenty-five years ago--circa 1990--Canada entered into an experiment aimed at addressing the disproportionately large numbers of Indigenous Peoples appearing in courts. (4) The Crown began funding Aboriginal justice programs (5) specifically aimed at reducing the number of Aboriginal offenders in the criminal justice system. (6) In particular, it was recognized that Aboriginal offenders should be dealt with in more culturally appropriate and meaningful ways. (7) Advocates--including some within the Crown--devised plans to create justice initiatives that might address the system itself. (8) Various Indigenous communities created restorative justice initiatives (9) meant to draw together all parties who had been impacted by harm, with a view to restoring community harmony.
Today, in spite of the efforts of restorative justice and the growth of diversion programs, the number of Indigenous Peoples entering the criminal justice system remains disproportionate and at an all-time high. (10) How might we define the success of restorative justice, and what should we use to measure it? What, if anything, have Indigenous restorative justice methods contributed to addressing this overrepresentation? When we consider restorative justice, do we mean something fundamentally different from the Canadian criminal justice system or is it simply the same system--like Coyote--dressed up with a different name?
DEFINING RESTORATIVE JUSTICE & DIVERSION
Though definitions of 'restorative justice' vary, the foundational tenets of restorative justice support the creation of "social arrangements that foster human dignity, mutual respect and equal well-being." (11) Indigenous restorative justice is typically a healing process based in Indigenous legal traditions. (12) Restorative models seek to attain process-oriented results "specifically associated with victims of crime and those who perpetrate those crimes." (13) John Braithwaite offers a broad approach:
[R]estorative justice is not simply a way of reforming the criminal justice system, it is a way of transforming the entire legal system, our family lives, our conduct of the workplace, our practice of politics. Its vision is of a holistic change in the way we do justice in the world. (14) In these ways, restorative justice is not necessarily achieved by what is often referred to in Canada as diversion. In some respects, diversion is similar to restorative justice; in the same way that at a distant glance coyotes and wolves might be mistaken for each other. Principally, a diversion program is an alternative to prosecution. (15) Diversion is the practice of moving an accused out of the courts and into a Crown sanctioned program, which provides an opportunity for the accused to make reparations--often through community service hours. Although Indigenous restorative justice models may also include community service hours, they are based on Indigenous legal orders rather than on the Canadian criminal justice model. Restorative justice is a location of decolonization in that Indigenous models of justice assist in revitalizing Indigenous laws through practice. (16) Diversion programs lean toward reform of the criminal justice system, whereas Indigenous restorative justice seeks to reinvent the criminal justice system. Reinvention requires imagination, which Coyote reminds us is a gift--one that we are all possessed of as well. But the question remains: how do we wield it?
BIIDAABAN: (17) SOME CONTEXT FOR RESTORATIVE JUSTICE INITIATIVES
There is a substantial body of literature citing the positive impact of Indigenous-based restorative justice initiatives (18) in redirecting some of the high number of Indigenous offenders away from incarceration (19) and addressing intimate violence, (20) which disproportionately impacts Indigenous women. (21) The literature examines how lower recidivism rates typically result when such programs are in place, (22) a result sometimes insufficient for critics who view such programs as allowing offenders to escape punitive reprimand--as though conviction and imprisonment are the only real forms of punishment. (23) There are also real concerns about victim participation due to the offender-oriented nature of some restorative justice models. (24) Some restorative justice programs, such as Biidaaban and Hollow Water, (25) address the latter group of concerns by allowing voluntary victim participation and ensuring specific victim supports throughout the process. (26) Moreover, though victim participation concerns remain valid, those concerns should be balanced against the frequent lack of restitution for the harm caused to victims, and the way in which court processes often subject victims to ruthless cross-examination. In exploring the value of restorative justice, we need to remember that statistics, numbers and data may conspire to either reveal or subvert meaning. In an era of rising neo-liberal policy-making, (27) measurement has become significantly important in rationalizing government choices, including the choice of which areas should receive attention and which should not. (28)
This dynamic shifts attention from the principles of restorative justice towards the requirements of securing funding for diversion programs--where volume is a key metric of success and where Indigenous knowledge focused on healing becomes less valuable. Community healing is restorative justice, (29) but it takes time and effort. (30) For example, Biidaaban was established...