Law, Crime, Punishment and Society
Eds. G. Blaine Baker and Jim Phillips. Toronto: Osgoode Society, 1999. 585 pp.
Legal studies in Canada are experiencing a golden age as articles, anthologies and monographs produced by academics trained in the 1980s and 1990s continue to appear. Nine books, nearly 50 authors and more than 2,000 pages of text and notes later, this reviewer is suffering from intellectual fatigue, but the type that comes from a good workout.
In terms of Canada's legal history, the Osgoode Society has been the leading force for publication for two decades. As of 1999 it had produced more than three dozen monographs or collections of essays. Its most recent anthology is edited by G. Blaine Baker and Jim Phillips, law professors who are also noted legal historians. Essays in the History of Canadian Law VIII evolved out of a 1998 conference dedicated to pioneering legal scholar R.C.B. Risk. In the 1970s the American-trained Risk published on the relationship between law and the economy in nineteenth-century Ontario. Significantly, these essays did not appear in history publications, but in law journals. His work is largely unknown to most Canadian historians, but Risk has exerted an important influence on legal history scholars associated with law faculties. His stature is acknowledged by two scholars of international repute, Robert Gordon and David Sugarman, and his body of work and its effect are assessed in an insightful chapter by G. Blaine Baker.
Most of the contributors to the Risk festschrift are involved with law schools, and the tone of most chapters tends towards classic legal history. Many of the contributions will challenge undergraduate students of history or criminal justice. Exceptions include Constance Backhouse's study of a racially motivated murder of a member of the Onyota'a:ka (Oneida) First Nation in 1902, a case study that underscores the lack of research on race and law in Canadian history. Hamar Foster's examination of Indian title in British Columbia and John McLaren's article on Chinese criminality in British Columbia from 1890 to 1920 also have broader appeal than mainstream legal history. White society "racialized" the Chinese not only through stereotypes, but through criminal law and law enforcement, especially in the areas of gambling, prostitution and opium smoking. McLaren indicates that although the Chinese in British Columbia were subjected to legal and bureaucratic racism, police harassment and informal discrimination, as a "despised minority" they also appealed to the rule of law and the courts for protection. On a more mundane level they utilized the civil courts for disputed commercial transactions. Because most criminal convictions against the Chinese were summary offences, it was rare for them to surface in appeal courts. Yet according to McLaren, appellate judges in British Columbia were guided by law, not racial prejudice, in many of their rulings involving the Chinese.
Peter Oliver's chapter on the judiciary in the historiography of Upper Canada offers a counter-revisionist critique of recent interpretations that condemn the colonial elite's manipulation of the legal system under the constitution of 1791. For much of the twentieth century, conservative and "consensus" historians of Upper Canada regarded judges and other members of the legal elite in a positive manner and dismissed radical reformers such as William Lyon Mackenzie as "demagogues." Early nineteenth-century reformers had complained loudly over the administration of justice, particularly when it was abused by Tory magistrates and judges for political ends. In recent years, scholars examining treason, sedition, libel and a number of celebrated murder trials have portrayed the Tory elite as subverting the rule of law. According to Oliver, it was the appointed judges, not popular politicians, who pressed for law reform prior to the 1840s - reforms such as the notable diminution of capital offences in 1833, jail reform and prisoners' rights. He also suggests that the oligarchy was never able to exert a monolithic control over the legal system. Basing his opinion on ordinary cases, Oliver suggests that "there is no persuasive evidence that the judges ever did anything but administer the criminal law fearlessly, objectively, and mercifully...."
Those interested in Maritime history will benefit from Margaret McCallum's study of property and property ownership in 1860s and 1870s Prince Edward Island, where antipathy towards absentee land ownership remains ingrained in the political culture and in law. For more than a century, the sanctity of property rights blocked land reform in a colony where most farmers were tenants and the large estates were controlled by wealthy non-residents protected by the British Parliament. Land reformers in nineteenth-century PEI, as McCallum details, had to devise alternate theories of property and law. Union with Canada in 1873, and a federal government loan, paved the way for PEI to resolve its land question in the 1870s. In 1875 the Supreme Court of Canada ruled as constitutional provincial legislation that provided compensation for expropriated land, effectively closing off legal remedies for the landlords.
Jim Phillips contributes an important chapter on criminal procedure in early Nova Scotia. As part of a larger project on law and society in Nova Scotia prior to 1815, he examines the workings of the criminal trial, specifically within the General Court of 1749 to 1754 and the Supreme Court from 1754 onwards. This study deals with the tip of the iceberg - trials of capital crimes - because records for the bulk of criminal trials are not extant. As in contemporary England, trials were brief, direct and bereft of lawyers. When defence counsel were present, their impact was constrained. There was no right to a defence lawyer in Nova Scotia until 1840. Although private parties usually initiated prosecutions, in eighteenth-century Nova Scotia, as in other British North American colonies, the state usually provided or hired prosecutors. The single most important aspect of a defence was the accused's speech to the court, a situation that must have intimidated the poor, the uneducated and those who did not speak English. The defence usually did not have its own witnesses. Rather than being led by counsel, the accused spoke in narrative form. The right to remain silent, a key aspect of the modern presumption of innocence, was not part of the eighteenth-century procedure. Disclosure was rare, rules of evidence and procedure were ill-defined, and character and credibility of defendants and witnesses counted for much. Phillips concludes that roughly one-third of individuals tried for capital crimes from 1749 to 1815 were acquitted.
Other essays in the volume deal with the legal profession, the bar, economic and regulatory issues and labour law. Bernard Hibbitts contributes a chapter on the portrayal of Canadian law and lawyers in American legal periodicals. He indicates that prior to 1896 American law journals gave considerable attention to Canada. This reporting was not always balanced or accurate, but it reveals that nineteenth-century legal culture in North America was far more eclectic than the modern "nationalistic" varieties.
The public is often convinced that the courts and parole authorities are "soft on crime," and there are occasional rumblings in favour of bringing back capital punishment, last inflicted in Canada in 1962 and abolished in 1976. Yet there is increasing evidence that Canada's justice system has been guilty of wrongful convictions. Barrie and Dawn Anderson's Manufacturing Guilt: Wrongful Convictions in Canada has a strong thesis; the book is clearly written and is well suited to an undergraduate audience. It argues that miscarriages of justice, including wrongful murder convictions that sent innocent parties to the gallows, are rooted not simply in legal errors or corruption, but in social inequality.
The authors examine the murder convictions of Donald Marshall, David Milgaard, Wilbert Coffin, Guy Paul Morin, Thomas Sophonow and Steven Truscott. As many Canadians know, four of these men were later released after new evidence came to light. Milgaard was wrongfully convicted of the murder of a woman in Saskatoon and served 23 years. Although the Supreme Court of Canada eventually quashed the original conviction and Milgaard was liberated in 1992, he was never allowed to prove his innocence through a second trial. Marshall, a Nova Scotia Mi'kmaw, served a dozen years in penitentiary for a murder he did not commit. The Nova Scotia government appointed a royal commission into racism and the justice system in the wake of his release. Coffin was convicted on questionable evidence of the murder of three American hunters in the Gaspe in 1954 and hanged in 1956. Truscott was only 14 when condemned in 1959 for the murder of Lynn Harper. Sentenced to prison, he was released on probation a decade later. Sophonow was released from penitentiary in 1986, four years after his initial incarceration for homicide. Although the case involved three trials and a final acquittal, the Winnipeg police continued to consider Sophonow the guilty party until new evidence in 2000 resulted in official apologies from both the police and the attorney general. Manitoba recently appointed a commission of inquiry into the Sophonow affair.
The authors list the "official" reasons behind wrongful convictions: unintended errors by police, prosecutors, defence lawyers and judges and poor witness reporting. More critical literature suggests that actual wrongdoing by police and prosecutors, such as coerced confessions, "unreliable prosecution witnesses" and fabricated evidence, also are problems. One thinks of recent cases where witnesses for the Crown have turned out to be guilty of robbery or murder. Trial judges and expert witnesses for the prosecution must share part of the blame. And so must legal-aid lawyers, who are enlisted to defend poor, uneducated or marginalized defendants, such as Wilbert Coffin. Canada's judges, usually "well-educated, prosperous and conservative," the authors suggest, are also part of the problem.
What can be done to counter the problem of wrongful conviction? First, deliberate acts of legal misconduct must be detected and punished. Untruthful police and expert witnesses should be charged and lawyers disbarred or otherwise disciplined. Legal-aid programmes should be reformed to give the accused, usually a marginalized person, a fighting chance. In terms of race relations, the authors refer to the many useful recommendations of the Marshall Inquiry (1990). Anderson and Anderson are troubled by the "right-wing shift" of the 1990s, which has focussed not on protecting the vulnerable in society but on exploiting fear of crime for political ends.
Canada's system of criminal courts has been under increasing scrutiny since the 1980s. In 1987 the Canadian Sentencing Commission was established, and over the next decade important amendments to the Criminal Code, the Young Offenders Act and other federal statutes resulted in changes in sentencing. Making Sense of Sentencing, edited by criminologist Julian Roberts and provincial judge David Cole, attempts to assess major issues in sentencing. A foreword by noted defence counsel Clayton Ruby argues that "the criminal law is applied with disproportionate efficiency to those who have inadequate social abilities, skills and opportunities." According to Ruby, trends in prosecution and sentencing are resulting in judges losing power to Crown attorneys and parole boards losing power to judges.
Making Sense of Sentencing is a collection of 21 essays by 18 authors, among them criminologists, lawyers and judges. The editors and most of the contributors, especially the criminologists, agree with the Canadian Sentencing Commission that we incarcerate too many people, most of whom are non-violent offenders. Critics are especially concerned by the rise in incarceration of young offenders and the wide disparities in sentencing from court to court and province to province. Yet judges traditionally cherish judicial discretion and individualized sentences.
In the 1990s, opinion polls indicated that three-quarters of Canadians believed that rates of violent crime were rising, that crime levels were linked to permissive courts and parole boards and that sentencing should be stricter. Perceptions aside, crime rates are stable or falling, and crimes of violence are the minority. Most repeat offenders, furthermore, are charged not with acts of violence but with drug or property crimes. Experts such as the contributors to this volume argue that the average citizen does not truly understand sentencing or parole or the severity of these measures. Roberts adds that what the public may mistake for leniency, for example community sentencing, may actually be examples of "net widening."
The benchmark for the volume is Bill C-41, which became the Sentencing Reform Act of 1996. This law covers diversion, limitations on community service orders, fine-payment defaults and the most controversial measure, conditional sentences. During the first year of the new legislation, courts imposed 13,000 community sentences. It is easier to enforce violations of community sentences than violations of probation or parole. Community sentences are reserved for low-risk offenders who in some jurisdictions are subjected to electronic monitoring. The public commonly views such sentences as "letting the offender go free." Yet community sentences have not affected the rate of imprisonment. Instead, they target less serious offenders who would have avoided jail anyway.
Carol LaPrairie's chapter on the sentencing of Aboriginal offenders, who are overrepresented in federal penitentiaries and in the provincial facilities in the three prairie provinces, is particularly interesting. In responding to the general argument that racial discrimination is the problem, LaPrairie mentions the American research work of Tonry, which stresses class and social-economic disparity as much as race. In Canada, in federal cases, non-Aboriginal offenders receive longer sentences than Aboriginal offenders. For provincial offences the differences are negligible. Aboriginals are involved, both as victim and offender, in a much higher rate of "personal injury offences," such as homicide, and in offences against the administration of justice, such as breach of probation, which result in jail time. LaPrairie suggests that white judges may even show leniency in sentencing Aboriginals. This analysis does not discount the very real problems that First Nations people face in a white justice system, but it does question many of our assumptions about the sentencing of Aboriginals.
In contrast, in another chapter Toni Williams argues that the overrepresentation of black offenders in Ontario prisons, which started to be noticeable in the 1980s, is based not so much on class, proclivity to offend or prior criminal history as on individual and systemic racism. The advocacy tone of this chapter reflects Williams's experience as a commissioner and report author for the Commission on Systemic Racism in the Ontario Criminal Justice System. The Canadian literature, she suggests, has been mute on this issue. Her empirical evidence consists of equal numbers of white and black men who were charged with drug offences, sexual assault, bail violation, assault and robbery. Although Williams glosses over the fact that blacks in the sample were one-third less likely to be convicted than whites, she shows that convicted blacks were somewhat more likely (66 per cent compared to 57 per cent) to be jailed than whites. Whites had a higher incidence of prior criminal records and more serious records overall, which contradicts the explanatory factors raised by American researchers such as Tonry. Contentious sentencing practices affect black offenders. Williams cites less leniency towards the unemployed; a higher rate among blacks of not-guilty pleas (which means a refusal to plea bargain); a greater likelihood of prosecutors opting to proceed by way of indictment in the case of black defendants (with more serious penalties for those found guilty) and a higher rate for blacks of detention before trial. For decades studies have indicated that denial of bail greatly influences trial and sentencing outcomes.
In another chapter, Dianne Martin, a professor of law, says that the punishment of female offenders perpetuates gender stereotypes. She suggests that sentences designed to punish or rehabilitate men "crush or brutalize" women offenders. Women are a minority in the justice system, and most often are prosecuted for impaired driving, shoplifting and other property offences. In federal institutions, women are white, young, poor, survivors of sexual or physical abuse and troubled by alcohol and drugs. Although women are less likely than men to be prosecuted or jailed, they are also more likely, because of cultural expectations, to be sentenced to psychiatric evaluations. They are also more affected by poverty, which explains the incidence of petty economic crimes and the inability to pay fines. Martin's article is somewhat contradictory: she suggests that the justice system is both lenient and harsh towards female offenders. Furthermore, her suggestion that lessening the severity of punishment for all offenders would reduce the effect on women offenders flies in the face of those who advocate a more robust response to male violence against women.
Other chapters discuss the victim's role in sentencing, the effects of parole (there are suggestions that judges impose longer sentences because of parole, despite contrary rulings by provincial appellate courts and the Supreme Court of Canada) and sentencing alternatives, including diversion, restorative justice and Aboriginal justice programmes. In a useful assessment of the Canadian Sentencing Commission ten years later, criminologist Jean-Paul Brodeur argues that the political process and more conservative public attitudes towards offenders have not only blunted true reform, they have created harsher criminal law. Passed in 1996, Bill C-38 (as noted in a concluding essay by Anthony Doob) imposed stronger penalties for certain drug offences and instituted Canada's first sentencing guideline. As proof of Parliament's punitive trend, Brodeur lists toughened Criminal Code provisions concerning arson and other offences; a Proceeds of Crime law; a more punitive Young Offenders Act; and minimum penalties for armed offences under Bill C-68 (the 1995 Firearms Act). He also cites rising rates of imprisonment for adults and youth from 1986 to 1995 and the "abuse of short-term incarceration," such as jailing individuals for defaulting on traffic fines. Doob concludes that Bill C-41, in terms of uniformity, has had little impact on the judiciary and that the structure of sentencing in Canada remains unclear. He suggests that the "broad consensus" (apparently this excludes public opinion) is that imprisonment is to be avoided and that victim impact statements before courts may "create mischief." One possible problem with the coherent sentencing systems now found in many American states, as one of the chapters in Making Sense of Sentencing indicates, is that they can lead to more severe sentences and a greater use of prisons.
The increasing role of appeal courts in determining a wide range of economic and social issues such as abortion and same-sex benefits is an important outcome of the legal rights revolution, which includes legal aid and the Charter of Rights and Freedoms. In Final Appeal, Ian Greene and four other political scientists explore an important and little-understood area of legal culture by interviewing the Supreme Court of Canada and 101 appeal court judges from 10 provinces. Judges responded to 10-page questionnaires; in addition, the research team collected data on 2,650 civil appeals and 3,198 criminal appeals to the Federal Court and provincial appeal courts. The provincial appellate courts are important because the Supreme Court accepts only a fraction of all the appeal cases.
Research on the judiciary and how it makes decisions has lagged in Canada because of the aura of judicial autonomy and an arm's-length relationship with political authority. The authors begin with the general theme of judicial discretion, which in certain circles has been portrayed as problematic, lacking in clarity or even antidemocratic. For example, in 1994 Michael Mandel warned that the Charter of Rights, by placing important socio-economic issues in the hands of a small, elite class of unelected judges, would harm the underprivileged and favour the rich and powerful. Other critics have noted that members of appellate courts often disagree with each other, or agree on an outcome for different reasons; witness the 1985 Morgentaler decision.
Green et al. are generally positive in their findings, concluding that judging appellate cases is "a human process," that "there are probably several different 'just' solutions to every legal problem" and that many of the concerns surrounding Canada's appellate courts since the Charter are "ill-founded." This concurs with the views of the Supreme Court of Canada judges interviewed for the study. Prior to the Charter, judicial culture in Canada was based on "interpreting" law; since 1982 judges are more comfortable with "making" law. Yet the interviews also suggest that most appellate judges are troubled by perceived threats to "judicial neutrality" from interest groups, government and the media.
Most appellate judges are men who specialized in private practice prior to their appointments and most of them have held previous judicial posts. Socially, the subjects of the book come from Canada's mainstream ethnic and religious groups, have advantaged backgrounds that often include relatives in the legal profession and are high achievers in terms of academic performance and community service. One-sixth have held federal or provincial elected office and a third have served as candidates in elections. The authors view the political aspect of Canadian judicial appointments as a positive aspect, a type of "community service" (36).
Final Appeal examines the "process of collegial decision-making" by provincial courts of appeal and finds that the proportion of criminal and civil cases "reserved" (meaning that the respondent's lawyer is heard) varies considerably from province to province. All the courts Green et al. studied based their decisions primarily on prior decisions, including those of English courts. In criminal appeals, courts usually side with the Crown, yet individuals persist in appealing decisions and sentences despite adverse odds. Some readers may question the authors' thoughts on the partisan nature of judicial appointments in Canada, but the study is a valuable one.
Maeve McMahon's Women on Guard, although consisting of several chapters, is more an extended essay. An academic who has written on policing and corrections and served as policy advisor and executive assistant to Ontario's Minister of Correctional Services, the author examines the plight of female corrections officers in a male-dominated setting, the prison. In 1992 allegations surfaced that two female corrections employees had been sexually assaulted by male counterparts at a training centre. Women corrections workers at a provincial jail also came forward with complaints of harassment and discrimination by male officers. The behaviour ranged from petty and childish to downright disturbing, and included remarks and actions of a sexual nature, insults, sexist "humour" and a tendency to isolate women from the mainstream operations of the prison. Women, it should be added, hold a small minority of supervisory and managerial positions in the corrections ministry.
Little is known of the history of women employed in Canadian corrections. Until the 1980s, they tended to work primarily with female prisoners, an outgrowth of the prison "matron" movement of the nineteenth century. As a result of affirmative action, by the 1990s most of Ontario's 1,000 female corrections employees worked in male institutions. Because of the macho code of the traditional prison guard and the secretive, paramilitaristic nature of the work, women guards were troubled more by their male colleagues than by the prisoners. Integrating women into corrections has proven to be no easy task. It remains a major issue for both management and unions (in this case, the Ontario Public Services Employee's Union).
McMahon devotes three out of seven chapters to staff problems at a small-town jail, since closed. Three female workers, all short-term or contract employees, lodged complaints of gender-based discrimination. Without minimizing the alleged harassment, the author probably could have cut some of the "she said, he said" detail. Readers probably do not need to know that Lieutenant Laroche found it humorous to "walk up to people and fart." Yet gender-based, physical and sexual harassment in institutional settings (juvenile justice facilities, orphanages, residential schools) has been an unfortunate reality of Canadian history, and the women's complaints seem entirely plausible.
Having identified a series of genuine problems, McMahon lists a number of possible solutions. Lieutenant Laroche and his brother officers aside, the issue goes beyond a few "bad apples" or lack of male sensitivity to the culture of the prison itself. McMahon calls for meaningful responses and meaningful penalties for harassers and abusers, who in the past have been transferred to other jails as "punishment." Training is an obvious issue, yet she cautions that it must not alienate male employees. Finally, she cites the need for special policies in the hiring, promotion and support of female officers. This is a must read for any woman - or man - considering a career in corrections.
David Cayley is a writer-broadcaster whose work will be familiar to listeners of CBC Radio's Ideas. His book The Expanding Prison is an eloquent examination of punishment and its consequences in Western society. The thesis is that the justice system is in need of serious reform and that imprisonment accomplishes few of its official goals - and makes things worse. The argument is based on an assumption that imprisonment in Canada is growing at an alarming rate, but the overall statistics are never really clarified. Cayley also asserts, without statistical backup, that "prison continues to monopolize the social response to crime."
The book takes a useful look at the history of punishment in Western society and suggests that crime did not demand punishment until the development of modern criminal law beginning in the twelfth century. The growing use of imprisonment has more to do with social problems than with crime. More significantly, punishment is a ritual, a coping mechanism of reassurance and containment in turbulent times. Cayley is influenced by European criminologists such as Nils Christie, Thomas Mathiesen and Herman Bianchi, who are critics of mainstream criminology, the prison "industry" and formal adversarial justice. The European examples are useful. But is it valid to compare rates of imprisonment in Canada, Finland and Norway without also comparing rates of crime or convictions? The author examines the theories of Foucault, whose 1978 book argued that the more lenient punishments of the nineteenth century were more powerful and insidious than those of the Ancien Regime. Foucault's work (which this reviewer has always thought overrated) seems to rule out the possibility of reforms such as decarceration.
Cayley's book was written at a time when the rehabilitative theory and practice of prisons, parole and other measures were under attack from the right. The Harris government of Ontario, for example, closed 25 halfway houses that had attempted to reintegrate offenders into the community. In spite of this trend, Cayley draws on theorists and pilot projects that emphasize restitution, repentance and alternatives to jail.
Canadians are accustomed to viewing justice as a service that is delivered by experts - police, prosecutors and judges. Prosecutions in theory are conducted in the name of the Crown, or state, in the public interest. Cayley examines other ways of doing justice that are rooted more in community. He cites youth justice initiatives in New Zealand and Australia, the work of Real Justice, which has created alternative justice projects in western Canada, and sentencing circles in First Nations communities. Victim-offender mediation of property offences is also discussed. The author admits that there are no easy solutions; restorative justice can only work when all parties agree. Although reintegrative shaming is doubtless better than repressive social control, many victims of crime have no interest in helping reform persons who have injured them physically, emotionally or economically.
Although hopeful about making justice more than a "procedural framework," Cayley cautions against implementing alternative justice in haste or because of political or fiscal expediency. Provincial authorities, for example, are keenly interested in reducing the volume of traffic in the courts. In Aboriginal communities, sentencing circles may lead to the violation of the rights of women and children, a concern of groups such as the Inuit Pauktiut and the Native Women's Association of Canada. Meaningful change will depend on government resources, a dismal prospect in the present political climate. Most important, for alternative or restorative justice to be effective, victims and the public have to accept new measures.
Clayton Mosher is a sociologist who has studied the history of narcotics enforcement in urban Ontario. His book, Discrimination and Denial, examines the treatment of Asians and blacks in the province's justice system from 1892 to 1961 and aims to dispel the myth that Canadian race relations have been relatively benign. In his opinion, Canadian historians and criminologists have ignored the issue. The relevant historical literature on policing and criminal justice is more extensive than he acknowledges, but it is true that most of the literature is devoted to First Nations and ignores blacks and other visible minorities. Mosher's work is in line with the findings of the Commission on Systemic Racism in the Ontario Criminal Justice System, appointed by the NDP government. By the early 1990s, the incarceration rate for blacks in provincial jails in Ontario was five times that of whites. And the media, according to Mosher and others, tend to racialize crime by stereotyping West Indian and other immigrant groups as particularly deviant.
The author uses secondary literature, jail registers from six Ontario cities and local newspaper accounts to display a consistent pattern of systemic racism by police and courts. Background chapters discuss the relevant literature in the sociology of law, drug enforcement and victim-offender relationships. Other chapters describe discriminatory immigration policies and show how the courts protected racial discrimination in employment, housing and services as late as the first half of the twentieth century. Mosher's research reveals that Asians were targeted in drug and gambling enforcement but were under-represented in economic crimes and crimes of violence. Until 1961 blacks in Ontario were targeted for what the author calls "public order" enforcement, and the media and police stressed their violent nature. The press and the judges who ran the lower courts doubted the credibility of testimony by blacks. For crimes of violence and property, blacks tended to receive longer sentences, especially when victims were white.
Mosher calls for academics to appreciate more fully the extent of systemic racism in the justice system and advocates the progressive use of race-based crime statistics, a move that has been supported by Aboriginal groups. He also calls attention to the continued racialization of crime by the media; such racialization tends to fuel anti-immigrant feeling. In reality, immigrants overall are more law-abiding than the native-born. Mosher may be in error when he suggests that the situation has changed little for Asian Canadians since 1961, but statistical and anecdotal evidence about police harassment and use of deadly force leaves little doubt that Ontario blacks are alienated from the justice system. The enforcement of drug laws exacts a particularly heavy burden on this minority.
Black Eyes All of the Time offers yet another perspective on ethnicity or race and criminal justice. Here the issues are complicated by gender, as the focus is on Aboriginal women who have been victims of intimate violence and abuse. The thesis is that in traditional Aboriginal societies, women were equal to men and treated with respect. One of the many results of the contact between white and First Nations societies since the sixteenth century is that the relative position of women in Aboriginal society has been eroded. Reserves, the Indian Act and residential schools, the loss of the land base and indigenous religion and language, all undermined social stability. Social and economic problems on reserves and among urban natives exacerbate the situation. This is most visible in the area of intimate violence. Anne McGillivray and Brenda Comaskey, a law professor and a violence researcher in Manitoba, base their book on a study of 26 Aboriginal women who suffered abuse as children, wives and mothers. The study followed from a request from the provincial Original Women's Network. The accounts are shocking. The title derives from one interviewee who grew up believing that family violence was the norm; violence in turn becomes normalized by adults. As the 1995 Report of the Aboriginal Justice Inquiry of Manitoba noted, there were few programmes or resources to protect and assist Aboriginal women in rural or northern communities. Police responses, according to many Aboriginal women, are often racist and misogynist.
The book describes life from the point of view of victims of abuse and violence, and the message is that diversion programmes, sentencing circles and other forms of alternative justice may not always protect or reassure victims. Extended family networks and cultural solidarity make it particularly difficult for Native women to report abuse. The women interviewed are aware of the importance of Aboriginal culture and the colonial nature of the white justice system. They are not criminologists or law professors who are studying theoretical issues. As individuals who have experienced emotional, sexual and physical abuse and who face the triple burden of economic vulnerability, racial discrimination and gender discrimination, they want laws to be enforced and violators to be punished. Many of them support the threat of prosecution as a deterrent to violence and custodial sentences - instead of probation or community sentences. They need to protect themselves and their children. It is important that their assailants are seen to be punished. They want their communities, especially chiefs and band councils, to start to take responsibility for intimate abuse. The victims, who often have endured dozens of assaults before calling the police, are interested in treatment for their abusers, but above all they want to be safe and feel safe. Although Manitoba enacted a zero-tolerance policy for police responding to domestic violence complaints, it has not always been practised on Indian reserves, and the policy has encouraged male partners to counter-charge. Interestingly, the interviewees were split on the issue of whether justice system personnel should be Aboriginal.
There are difficult issues that need to be worked out in Aboriginal justice. On the theoretical level, First Nations organizations question the individualistic European discourse on "rights" as antithetical to group customs and traditions; they proffer a vision of justice that is based on the well-being of the collectivity. On the practical level the authors examine anti-violence projects designed by or involving indigenous peoples in New Zealand, Hawaii, Minnesota and Saskatchewan. These initiatives are holistic and community-based, and they combine both informal and formal approaches to focus on safety and healing. These models, the author suggests, in time may benefit Aboriginal communities in Manitoba and elsewhere. But until major changes are introduced, many women and children will be forced to leave their reserves for the relative safety of the city.
The final book discussed in this review is Justice in Paradise by Bruce Clark. The author of Native Liberty, Crown Sovereignty, Clark holds an MA in Aboriginal history and a PhD in comparative jurisprudence. But he is best known as the outspoken bald lawyer with the eccentric eyewear who captured media attention following the Aboriginal blockade at Oka in 1990. In the 1970s Clark was an Ontario lawyer, involved with the Temagami of Bear Island in a dispute over land and sovereignty. During this decade Clark and his family lived on a reserve and immersed themselves in Native culture.
Justice in Paradise is an autobiographical version of a dramatic story that takes the protagonist and his family from small-town Ontario to voluntary political exile from Canada because of its history of "friendly" genocide towards Aboriginals. Throughout the book, Clark is reminiscent of an Old Testament prophet who invites ridicule, scorn and revenge for unpopular yet in his eyes truthful words and deeds. That truth is his vision of the rule of law, or what it could be. In his conclusion, the author speaks of "a higher law" that should govern Aboriginal issues.
In the course of historical research, the author uncovered a forgotten order-in-council from the English Crown in 1704, which recommended the establishment of a third-party court to hear disputes between North American Indian nations and English colonial governments. Clark makes this the centrepiece of his version of a rule of law that ideally would make Canada and its institutions accountable for their past actions towards the First Nations. His larger arguments are based on constitutional and international law. He visited Europe in the attempt to seek international recognition. Other causes to which he was attracted were those of the Lil'Wat Nation and the Shuswap activists involved in the armed standoff at Gustafsen Lake.
Clark's activities in the 1990s, which included accusing the Supreme Court of Canada of complicity in genocide and attempting to perform a citizen's arrest on a judge for treason, were portrayed as bizarre behaviour in the media. He also criticized Native leaders, organizations and "the human rights industry" for "playing at politics" with federal government money. "Profiteering" Natives, in his universe, are collaborators; "cultural" Natives are forces of resistance and justice. Clark's price for defying legal norms has included being arrested and paraded in handcuffs and leg shackles in front of the national media, being jailed, being remanded for psychiatric assessment and being disbarred ("very reluctantly") by the Law Society of Upper Canada. Bar associations in Quebec and New Brunswick denied him the privilege of appearing for Native clients in those jurisdictions. Another twist in the story is that Clark had a habit of falling out with his First Nations clients. In 1999 Clark and his wife departed for Norway, where they applied for refugee status.
The books and articles reviewed here focus on criminal and constitutional law, and certainly are not representative of the legal system as a whole. Yet these studies reveal that law is a contested realm, that academic work on law and society is thriving and that no one ideological, theoretical or methodological approach dominates. The themes of gender, race, class and public policy will continue to demand the attention of legal and criminological scholars. As we enter a new decade we can look forward to a further proliferation of monographs and anthologies on law and society.…